The importance of having expert medical opinion supporting allegations in medical negligence proceedings was emphasised in the recent decision in O’Neill v Birthistle. In 2023, there were a number of dismissal applications in medical negligence claims which had mixed success. These were largely based on grounds of delay. Our Medical Law team recently represented a hospital in successfully dismissing a medical negligence claim on a separate but linked basis. This was because the patient served a summons while in receipt of an unsupportive report. The claim was dismissed even though the patient later obtained a supportive expert report.
The generally accepted position is that a patient must possess supportive expert opinion before serving a summons on a hospital. Alternatively, they must demonstrate that they have a reasonable basis to maintain medical negligence proceedings.
The patient received medical care in 2016 and issued a personal injuries summons in 2018 pleading that the care received was negligent. The patient did not have a supportive expert opinion when the summons was issued. The summons was issued protectively as the statute of limitations was about to run out. When the summons issued, it specified that the patient was not in receipt of any expert opinion. The patient received an unsupportive expert opinion in 2018 after the summons had issued. The patient went on to make further attempts to obtain a supportive expert report. The summons was served in 2019, even though the patient had not obtained a supportive report at that stage. The patient later obtained supportive expert opinion in 2020.
Claim dismissed not on grounds of delay but an abuse of process
In 2022, the hospital issued a motion to dismiss the patient’s claim on several grounds. These included delay and abuse of process in serving and continuing with proceedings without a supportive expert report. In a previous update, Healthcare Litigation Review of 2023, we discussed that if a patient delays in prosecuting a claim, it is open to the hospital to apply to dismiss the claim due to delay. In the case we are discussing, the claim was not dismissed on grounds of delay, even though it was agreed that the delay was inordinate and inexcusable. The court was not satisfied that the balance of justice favoured dismissing the claim, being the third limb of the Primor test.
We discussed the Primor test in a previous update, Court Dismisses Medical Negligence Claim Due to Delay – A New Era? A replying affidavit was filed in response to the hospital’s motion. This affidavit stated that the patient received an expert report which was not considered to be satisfactory and a decision was made to obtain another expert report. The court’s decision centred on the fact that the summons was served when the patient was in receipt of expert opinion which did not support continuing with medical negligence proceedings. Several Supreme Court judgments, including Cooke v Cronin, were considered. The court noted that the Supreme Court has established that it is irresponsible and abuse of process to launch or initiate and prosecute an action without expert advice to support that. This claim was dismissed on this basis.
The patient has appealed this decision to the Court of Appeal.
There are several learning points to take away from this case for both patients and hospitals. Patients should ensure that they have supportive expert reports on which to base their claims before serving proceedings. We would caution against a patient serving a summons if they are only in receipt of an unsupportive expert report. Hospitals' solicitors should seek confirmation from a patient that they possess a supportive report when a summons is served.
People also ask
On what grounds could a court/judge dismiss a medical negligence case?
A case could be dismissed on grounds of delay if the Primor test is satisfied or on grounds of an abuse of process if a summons is served when a patient is only in receipt of an unsupportive expert opinion.
Do you need expert medical opinion to issue a medical negligence claim?
You should have supportive expert opinion before you issue proceedings but if you are running out of time under the Statute of Limitations you can issue without such a report. That said, you should have obtained supportive expert opinion before serving the personal injuries summons on the hospital.
What is the Primor test for delay?
How long of a delay will result in a medical negligence case being dismissed?
This varies from case to case and the length of a delay. A period of delay could satisfy the first limb of the Primor test for one case, but not for another. There are other grounds on which a case could be dismissed without the need for a delay. These include, for example, if:
The content of this article is provided for information purposes only and does not constitute legal or other advice.
  IECA 17
 Primor plc v Stokes Kennedy Crowley  IECA 156
 Cooke v Cronin & Neary  IESC 54