Healthcare & Medical Update: Knowledge and Statute of Limitations in Personal Injury Actions
03 September 2019
The Supreme Court recently ruled in the case of Green v Hardiman that expert medical advice can ‘stop the clock’ for the purpose of the statute of limitations if a plaintiff is advised that their injury is likely not attributable to a negligent act.
Section 3 of the Statute of Limitations (Amendment) Act, 1991 provides that a plaintiff has two years to bring an action for personal injuries. Time runs from the occurrence of the wronful act which caused the injury. However, an exemption applies where the plaintiff’s date of knowledge is later than the date of the wrongful act. In these circumstances the timeframe will run from:
- The date when the plaintiff first had ‘knowledge’ that an injury had occurred, the identity of the wrongdoer and that the wrongful act was attributable in whole or in part to the act or omission which is alleged to constitute negligence, or
- The date when the plaintiff ought to have sought out this knowledge (or ‘constructive knowledge’).
In the recent Green v Hardiman Judgment the Supreme Court ruled the proceedings were permissible despite being issued almost five years after the date of the alleged wrongful treatment. The judgment demonstrates that professional medical advice can stop time running if a plaintiff is advised, in this case wrongly, that his or her injury is likely not to be attributable to a negligent act.
Background facts of the case
The plaintiff was admitted to Tallaght University Hospital (TUH) for a procedure in mid-December 2007. During the course of the procedure, his bowel was accidentally and non-negligently perforated. The perforation was not appreciated intra-operatively. Following the surgery, the Plaintiff remained unwell. Notably, a CT scan was not performed during the early post-operative period. Eventually, a laparotomy was carried out which identified the perforation and resulted in a stoma. The plaintiff remained in TUH for nine days and his evidence at trial was that he recalled being told a suture or stitch had come loose. The stoma was reversed in TUH in early February 2008 and the plaintiff subsequently developed a hernia, which was his dominant injury.
In early 2009, the plaintiff was referred to a new surgeon in a different hospital regarding his hernia (the 2009 surgeon). The 2009 surgeon examined the plaintiff without the benefit of the prior TUH medical records and advised that any connection between the procedures at TUH and the plaintiff’s hernia was likely minimal, and that a separate pathology, not linked to those procedures, was likely responsible for his hernia and associated difficulties.
The plaintiff first consulted his solicitor in January 2011, more than three years after the alleged negligent act. Medical records were received by the plaintiff’s solicitor in late March 2011. A report from a medical expert into the plaintiff’s injuries was received in May 2012. While there were multiple particulars of negligence alleged, the key one, at least as it pertained to the statute, was that the plaintiff’s hernia arose as a result of the delay in carrying out a CT scan in the early post-operative period and the failure to re-operate soon thereafter.
High Court proceedings issued in August 2012, four years and eight months after the alleged negligent treatment.
The defendant claimed the plaintiff’s proceedings were statute barred and that the plaintiff was not justified in delaying his proceedings for such a long period of time. The defendant submitted that the plaintiff had the requisite knowledge from early in his post-operative period when he was acutely aware that he had suffered a significant injury and that it was caused by the treatment provided at TUH. The defendant relied on particulars which stated the plaintiff ‘became concerned as to the quality of the care’ he had received at TUH following the consultation with the 2009 surgeon.
The plaintiff submitted that ‘knowledge’ that could be attributed to the alleged negligence of the defendant could only arise on receipt of the expert report received in May 2012 or, alternatively, upon receiving his medical records in late March 2011. Both of these, the plaintiff maintained, were within two years of issuing proceedings in August 2012 and, accordingly, were within the timeframe allowed by statue.
High Court and Court of Appeal judgments
In the High Court, Mr Justice Kevin Cross accepted that the plaintiff had knowledge that he developed a hernia as a result of the medical procedures he underwent at a relatively early date. However, the plaintiff was not aware that the hernia was attributable in whole or in part to the alleged negligence of the defendant. Judge Cross laid particular emphasis on the advice of the 2009 surgeon, which he considered had ‘assuaged’ the plaintiff’s early concerns and he effectively characterised these early concerns on the plaintiff’s part as ‘barking up the wrong tree’. He therefore concluded that the plaintiff did not acquire sufficient level of knowledge until he was in receipt of the expert medical report in May 2012 or, arguably, until he received his medical records in late March 2011, both of which are within the permitted timeframe. The High Court awarded damages to the plaintiff in excess of €95,000.
The Defendant appealed to the Court of Appeal which refused to overturn the decision of the High Court. The Court of Appeal found that it was unreasonable to expect a plaintiff to embark on further inquiries after the advice given by the 2009 surgeon on 14 January 2009.
Supreme Court judgment
The defendant appealed to the Supreme Court which upheld the judgment of the High Court and the Court of Appeal.
The judgment of Mr Justice Peter Charleton notes that, although there was a considerable gap from January 2009 when the plaintiff was not in active pursuit of his claim, this arose directly as a result of the plaintiff’s consultation with the 2009 surgeon. The judgment went so far as to state that if the plaintiff had not sought this consultation in 2009, he would have failed to seek out facts when it was reasonable to do so and his claim would have been statue barred. Judge Charleton notes that the limitation period was delayed in the exceptional circumstances of this plaintiff being given, in good faith and on the basis of a professional assessment by the 2009 surgeon, an incorrect set of facts.
Judge Charleton further noted that medical records are not always in themselves evidence of facts that are ‘knowable or ascertainable’ by a plaintiff. A reasonable time period should be allowed to ascertain whatever fact is to be found within those medical records, which should be sought within a reasonable time frame.
This judgment, and that of O’Sullivan,which was considered at the same time by the Supreme Court, brings some helpful assistance to medical negligence cases involving the statute.
It is worth noting that it is not sufficient for a plaintiff who has clearly had a bad outcome to take no steps to investigate the cause of that outcome and still maintain the benefit of the statute. On the other hand, plaintiffs who do take active steps to determine the cause of their injury and are re-assured by an experienced professional, even if that reassurance is incorrect, may well benefit from the statute.
It remains the case however, that no all-encompassing test can or does apply to statute cases, which remain subject to their own specific and sometimes complex facts.
For more information on defending cases of this nature which are influenced heavily by the statute of limitations, contact a member of our Healthcare & Medical team.
The content of this article is provided for information purposes only and does not constitute legal or other advice.