Healthcare Update: Expert Evidence Essential Before Launching Medical Negligence Proceedings
01 November 2018
In April 2018, Mr Justice Binchy dismissed the plaintiff’s claim against the second and third named defendants in Andrew Mangan (a minor) v Julian Dockeray and By Order Brian Denham and Mount Carmel Hospital. In his judgment, he restated the principle that expert evidence is essential before launching medical negligence proceedings.
Mr Mangan was born in 1995 at Mount Carmel Hospital, the third named defendant in this case. Mr Mangan suffers from cerebral palsy, cortical blindness and quadriplegia. The first named defendant was the consultant obstetrician who provided antenatal care to Mr Mangan. The second named defendant was the consultant paediatrician who was involved in Mr Mangan’s neonatal care.
Mr Mangan issued a personal injuries summons (PIS), against the obstetrician only, in June 2008 alleging negligence relating to his antenatal care causing injury. However, no attempt was made to serve this PIS and, subsequently, an application to renew the PIS was successfully made in July 2013. The defending obstetrician challenged the renewal of the PIS but was unsuccessful and filed an appearance in June 2015. The obstetrician then brought an application to join the paediatrician and Mount Carmel Hospital as third parties to the proceedings and this application was grounded on an affidavit sworn by the obstetrician’s solicitor on record. The affidavit stated that an expert report had been obtained which criticised the ventilation provided to the plaintiff during the neonatal period and, as a result, Mr Mangan experienced a reduced level of carbon dioxide in his blood leading to a brain injury. This expert report also maintained that Mount Carmel Hospital was an inappropriate setting to provide this type of neonatal care as it did not have resident paediatric expertise or facilities for blood gas monitoring and the plaintiff should have been transferred to another hospital. It is relevant that the expert report itself was not exhibited to this affidavit and requests by the plaintiff for a copy of this expert report were denied.
During the time lapse from 2008 to 2013, Mr Mangan had undertaken very extensive investigations with medical experts. Based on their expert medical opinions, while there were criticisms of the neonatal care, Mr Mangan’s condition was not caused by injuries sustained during the neonatal period. It was their opinion rather, that it was the obstetrician’s negligent antenatal management which caused the plaintiff’s injuries.
The application to join the paediatrician and hospital as third parties came before the court in November 2016 when the plaintiff successfully applied to have these parties joined as co-defendants. Mr Mangan served an amended PIS which pleaded that he did not possess any expert medical evidence supporting allegations of actionable and causal negligence against the paediatrician or the hospital. However, rather reliance was being placed upon the expert medical opinion of the obstetrician.
Application of the paediatrician and hospital to dismiss the claim
The paediatrician and the hospital relied upon several grounds including Order 19 Rule 28 of the Rules of the Superior Courts (RSC) in seeking a dismissal of the plaintiff’s claim. It was argued that no reasonable cause of action was disclosed and the claim was frivolous, vexatious and an abuse of process. It was submitted that the plaintiff’s pleadings openly admitted that he had no expert evidence to support the claim against the paediatrician or the hospital. Emphasis was placed on a number of High Court and Supreme Court decisions which set out that there is an obligation on any party intending to sue another alleging professional negligence to obtain supportive expert opinion first before embarking on this course – Reidy v National Maternity Hospital and Cooke v Cronin. They also contended that a plaintiff is not entitled to sue a defendant in professional negligence on the sole basis of an assertion made by another defendant. Meaning that a defendant should not be susceptible to a plaintiff “piggybacking” on a claim being made by a defendant against another party in a third party application.
In response, Mr Mangan submitted that joining the paediatrician and the hospital in this case was necessary and proportionate in light of the plea within the obstetrician’s affidavit alleging negligence against them. He also argued that the defendants faced a heavy burden in seeking a dismissal of the claim for abuse of process and to characterise the plaintiff’s actions as an abuse of process afforded no consideration to the complexities arising from the content of the obstetrician’s affidavit. It was further submitted that the case law being relied upon by the paediatrician and hospital did not specify that the expert opinion grounding the claim must be an expert opinion held by the plaintiff. The case law, only specified that there must be reasonable grounds for the claim and the plaintiff contended that these grounds were met by the obstetrician’s expert opinion. The difficulty of course was that the plaintiff had been denied access to the obstetrician’s expert opinion which had not been exhibited in the affidavit and it was therefore contended that this expert opinion was hearsay evidence.
The judge found in favour of the paediatrician and hospital in dismissing Mr Mangan’s claim against them. The following are the key points in reaching his decision:
- The plaintiff made no allegations of any kind against paediatrician or hospital
- The plaintiff’s own expert does not causally link the actions of the paediatrician or hospital to the injuries sustained
- The plaintiff had time to refer the views of the obstetrician’s expert to his own experts and adopt these allegations as his own if his experts thought it appropriate to do so. This is not reflected in the amended PIS which clearly states that no allegations are pleaded against the paediatrician or hospital
- The plaintiff could have sought additional time to obtain further expert opinion but did not do so
- Where a plaintiff declines to make any allegations of his own against a defendant, the pleadings do not disclose any reasonable cause of action as per Order 19, Rule 28 of the RSC.
- The proceedings must be bound to fail as against the paediatrician and hospital
- It would “fly in the face of logic to allow a plaintiff to continue a case against a defendant or defendants in respect of whom the plaintiff himself has made no allegations of negligence, and instead simply relies on allegations which are made in an affidavit sworn by a solicitor grounding an application to join other parties as third parties to the proceedings, and which affidavit does not even exhibit the expert opinion relied upon for that application.”
In summary, if you seek to join a healthcare practitioner or provider as a party to medical negligence litigation, you must first be assured that you possess supportive expert opinion.
For more information regarding defending medical negligence claims, contact a member of our Healthcare & Medical Law team.