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Still a High Bar to Get Claims Dismissed

We look at the facts influencing two unsuccessful applications to dismiss medical negligence proceedings on the grounds of delay before the High Court. We examine how these decisions are differentiated from the dismissal granted in Rooney v Health Service Executive[1]. Read our previous article about the judgment in that case here

Case 1

In Harte v Pallany Pillay T/A City General Hospital[2] (Harte), the plaintiff sustained catastrophic injuries after her birth, resulting in the requirement for lifelong full-time care. It was alleged, based on expert opinion, that the defendant clinician was negligent in delaying her treatment.

The defendant applied to dismiss the proceedings on the basis that it was unjust to require him to defend the case because of:

  1. The delay since the plaintiff’s birth, given that she did not issue the claim until she was age 26, and
  2. The absence of the plaintiff’s medical records held by the defendant.

A different test was applied here than in Rooney. As this plaintiff is under a disability, an inordinate and inexcusable delay does not have to be proven.[3] Rather, the court assesses “whether there is a real and substantial risk of an unfair trial on the basis of the lapse of time since the event giving rise to the action occurred”.[4] This is a higher threshold for the defendant to satisfy than the usual “balance of justice” test.

In applying this test, the judge was not satisfied that there was a real and substantial risk of an unfair trial for the following reasons:

  • Although there were a significant number of birth records missing, there were other records available referring to the events at birth.
  • Although the defendant clinician was 88 years old, he did not have any age-related memory difficulties. While he could not remember the plaintiff’s treatment, he could give evidence of his normal practice and protocols. Therefore, there was evidence he could give at trial.
  • The defendant clinician destroyed the plaintiff’s birth records himself which fell short of best practice to retain records for at least 25 years.

The judge distinguished this case from other cases which were dismissed where plaintiffs had no supporting expert reports, as was the case in Rooney.

Case 2

In McDonald v A Z Sint Elizabeth Hospital[5] (McDonald), the plaintiff alleged that he suffered complications as a result of an internal fluid spillage during a gastric bypass procedure.

The defendant hospital sought to dismiss the case on the grounds of two periods of delay, which amounted to almost three and a half years combined. Firstly, between October 2015 and October 2017, the defendant’s Replies to the plaintiff’s Notice for Particulars (Replies) were outstanding. Secondly, during the period September 2019 to December 2020, after the Notice of Trial.

In applying the three-limb Primor test,[6] the judge refused the application and found the following:

1. Was the delay inordinate?

No as it consisted of two separate periods and the service of the Replies intervened during the first period of delay in November 2016.

2. Was the delay inexcusable?

The reason that the Replies were outstanding during the first period of delay was not a good excuse as the plaintiff delayed further after the Replies were received. The delay during the second period was because the case could not be listed for hearing due to the Covid-19 pandemic which was excusable. In Rooney, the Covid-19 pandemic was not accepted as an excuse for the delay in obtaining an expert report to base the claim, as the search for an expert could be done remotely by email.

3. Where the balance of justice lies

The defendant hospital did not identify specific prejudices and despite the reputational damage to the hospital, it was found that the balance of justice lay in favour of allowing the claim to proceed. This is because liability would ultimately be decided primarily by expert evidence (i.e. based on records), rather than the verbal evidence of witnesses.[7] In Rooney, more weight was given to reputational damage of the treating clinicians as the plaintiff had no expert report to support the claim.


These cases differ from Rooney, as both plaintiffs had previously pleaded allegations based on expert opinion. In Rooney, proceedings were ongoing for about six years without the claim being supported by an expert report. It is important to note that dismissals may likely still be granted in those circumstances, despite these recent judgments.

The emerging message from cases like Harte and McDonald is that where medical negligence claims are supported by expert opinion, a defendant should identify specific prejudices suffered as a result of the delay to have a better chance of getting a claim dismissed. In addition, there is a higher bar where a plaintiff is suffering from a disability.

For more information on navigating similar claims, please contact a member of our Medical Law team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.

[1] Rooney v Health Service Executive [2022] IEHC 132

[2] Jane Harte (a person of unsound mind not so found) suing through her mother and next friend Olivia Harte v Pallany Pillay T/A City General Hospital, Bolger J, 15 June 2022 IEHC 359.

[3] Sullivan v. HSE [2021] IECA 287.

[4] Sullivan v. HSE [2021] IECA 287.

[5] Aidan McDonald v A Z Sint Elizabeth Hospital, [2022] IEHC 369.

[6] Primor plc v Stokes Kennedy Crowley [2019] IECA 156.

[7] The judgment cited the cases of Mangan v Dockeray & Ors. [2020] IESC 67 and Walsh v Mater Misericordiae University Hospital & Ashley Poyton [2022] IEHC 126, which also emphasised the reliance that would be placed on the written medical records at trial.

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