TIME FOR ISSUING PROCEEDINGS

IMG_0239While the High Court Decision in the case of Linda Farrell –v- John Ryan ultimately went against the Claimant on its merits, the case is particularly instructive in addressing the question of when it is too late for a Claimant injured through Medical Malpractice to bring a Claim.

Mrs. Farrell’s case arose out of a Symphysiotomy carried out in 1963.   Her case was that the procedure was without justification and left her with lifelong symptoms.   While the High Court did not ultimately accept this contention, it had to first address the Defendant’s claim that Mrs. Farrell should be precluded from bringing her case at all due to the passage of time.

His Honour Justice Cross first recited the fact that the time limit for initiation of a Personal Injury Claim is two years from the date of the injury.   HOWEVER the Court recognised that, in certain circumstances, time will only run from the ‘date of knowledge’.

The Defendant raised the preliminary defences of (a) Prejudice and (b) Statute of Limitations.

On the issue of Prejudice the Defendant pleaded that it would be unfair and unjust to require the Defendant to meet the case being made by Mrs. Farrell.  The Court restated the ‘test’ in such circumstances to be (a) whether by reason of lapse of time there is a real and serious risk of an unfair trial and (b) whether by that lapse of time there is a clear and patent unfairness in asking the Defendant to defend the Action.

Notwithstanding the passage of some 51 years from the Medical Procedure complained of, the Court held that given the significant and extremely difficult onus of Mrs. Farrell to prove that there had been no justification for the procedure, and the fact that the Defendant had the benefit of a number of experts, no prejudice arose.

On the provision of the Statute of Limitation, the Court held that the time to initiate the Claim only ran from the ‘date of knowledge’.   The Court then undertook a full review of the post-operative experiences of Mrs. Farrell and concluded that it was 2010 following a TV Programme on Symphysiotomy that Mrs. Farrell first questioned if she might have actually undergone such a Procedure.   The Court accepted that it was not until that time that Mrs. Farrell knew about such procedures and thought that she might have had such a procedure.   In response she sought her full Medical Records.

His Honour Justice Cross concluded that Mrs. Farrell was not statute barred from initiating her Proceedings as she did by virtue of the finding that her date of knowledge did start to run until she had actually received her records from the hospital.

For anyone who suspects that he or she may have been the victim of Medical Malpractice this Case is instructive in recommending that Legal Advice be sought and it not simply assumed that passage of time precludes the individual from initiating a Claim for Compensation.

 

 

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