Time delay issue raised in Neary case

Five judges of the Supreme Court are to be convened to decide an important legal issue which has arisen in proceedings by Co Louth consultant obsetrician Dr Michael Neary aimed at halting an action for damages for the alleged unnecessary removal of a woman's womb.

The issue was discussed during the opening of Dr Neary's apppeal yesterday before a three-judge Supreme Court against the High Court's refusal to prevent Margaret Lynch from bringing an action alleging he unnecessarily removed her womb after she gave birth to a stillborn infant in August 1988.

The legal issue relates to whether the court may exercise its inherent jurisdiction to dismiss Ms Lynch's claim in circumstances where, in the absence of a claim by Dr Neary that the action is brought outside the legal time limit, it must assume no fault by Mrs Lynch or by Dr Neary in relation to delay in the case.

Yesterday, Charles Meenan SC, for Dr Neary, argued that even where a plaintiff was blameless relating to delay, the court could still exercise its inherent jursidiction to dismiss the action and should do so.

Seán Moylan SC, for Mrs Lynch, said the court had raised a very serious issue which he believed should be decided by a five-judge court. Following discussions between the judges and counsel, the court adjourned to consider the issue raised and how it should be addressed.

When it resumed, Ms Justice Susan Denham, presiding, said the case involved "very significant" issues.

Mrs Lynch was claiming damages for an alleged serious injury in 1988 and Dr Neary was claiming he was totally prejudiced by the lapse of time in the case and the absence of hospital records relating to Mrs Lynch's treatment.

The judge said a legal issue had arisen and the court had been referred to a number of High Court decisions but was not satisfied these addressed the precise situation and issue in this case.

In those circumstances, Ms Justice Denham said the court would adjourn the case to a later date in order to have the matter heard by a full court of five judges.

The case arises from proceedings in which Mrs Lynch, Church Lane, Tullyallen, Co Louth, is suing Dr Neary and Our Lady of Lourdes Hospital, Drogheda, for damages for personal injuries arising from the hysterectomy.

In High Court proceedings in February 2005, lawyers for Dr Neary argued the court should strike out the case because of the delay in bringing the proceedings which meant relevant contemporaneous records were not available from the hospital.

Dr Neary would be unable to defend the action without these records, it was claimed.

It was alleged that Mrs Lynch had first become aware of her cause of action in 2001, when she visited a GP. Proceedings were instituted in November 2003.

In refusing to strike out the action, Mr Justice Paul Butler said that to do so would deprive Mrs Lynch - who, on her case, had suffered gravely and was not at fault for the delay - of her right to even present her case.

The judge said he was satisfied that the prejudice which Dr Neary alleged as a result of delay had not yet been established.

Yesterday, Mr Meenan said Dr Neary first became aware of Mrs Lynch's claim against him in late 2003. No medical or nursing notes relating to the 1988 operation were available from the hospital. Dr Neary would not have made personal notes but would have made entries in the hospital records, counsel said.

Mrs Lynch was not a private patient.

Such records as were available were of little use, counsel said. These related to what blood transfusions were arranged for Mrs Lynch and there were also slides related to the removal of organs. There were no obstetric notes and no theatre register. His side needed the notes of the operation.