A 26-year-old woman from Cork who sustained catastrophic injuries shortly after her birth can proceed with her legal action against the consultant gynaecologist following a court ruling.
Jane Harte was born at a now-closed private maternity hospital in Cork on October 8th 1995. Seventeen hours after birth, she was transferred to another hospital, where she was diagnosed with sepsis and meningitis. This caused her catastrophic injuries, as a result of which she will require full-time care for the rest of her life.
Ms Harte, suing through her mother Olivia Harte, claims that it was the negligence of the defendant, attending consultant gynaecologist, Pallany Pillay, that resulted in her treatment being delayed and had she been treated earlier, the injuries she sustained could have been avoided.
The defendant had applied to have the case dismissed, with lawyers for Mr Pillay stating that he is at risk of facing an unfair trial due to Ms Harte’s delay in bringing the case until she was in her 20s. It was also claimed by the defendant that the absence of medical records, which had been destroyed by Mr Pillay before the plaintiff took her case, “significantly compromises his ability to defend the proceedings”.
However, in the High Court, Ms Justice Bolger refused the application to have the case dismissed. She concluded that because the plaintiff is operating under a disability, she is not required to prove that the delay in bringing her case was not inordinate or excessive.
Furthermore, she did not consider the medical records so non-existent as to put the defendant at real and substantial risk of an unfair trial, confirming that the risk of unfair trial must be “real, serious and unavoidable” and cannot be addressed by the trial judge.
Although costs have yet to be awarded, in her judgment, Ms Justice Bolger indicated that the plaintiff is entitled to her costs as the defendant’s application was unsuccessful.
About the authors: Avril Scally is Head of Medical Negligence and Nicholas Moore is a Medical Negligence Solicitor.
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