Woman wins right to pursue Neary action

In a decision with implications for several other actions initiated against Co Louth consultant obstetrician, Dr Michael Neary, the High Court has ruled a Co Cavan woman may sue Dr Neary for damages over what she claims was the unnecessary removal of her left ovary.

Mr Justice O Caoimh yesterday rejected a preliminary application by Dr Neary and Our Lady of Lourdes Hospital, Drogheda, to have proceedings taken against them by Ms Rosemary Cunningham struck out on the grounds that they were statute barred - brought outside the three-year time limit.

On the application of Mr Sean Moylan SC, for Ms Cunningham, the judge awarded costs of the application to her against the respondents.

The decision in favour of Ms Cunningham is expected to have a knock-on effect for other cases which have been initiated against Dr Neary, several of which related to allegedly unnecessary Caesarean hysterectomies carried out some years ago.

Ms Cunningham, of Corlea, Kingscourt, Co Cavan, has taken proceedings against Dr Neary; representatives of the Medical Missionaries of Mary and a nominee of the North Eastern Health Board arising from her treatment by Dr Neary at Our Lady of Lourdes Hospital in 1991.

She claims he wrongfully removed her left ovary during an operation on August 15th, 1991, which followed her admission to the hospital with an ectopic pregnancy.

In her evidence to the court, Ms Cunningham said that when she asked Dr Neary why he had removed her left ovary, he had shouted at her: "I didn't like your bloody ovary anyway." The court was told Dr Neary was denying making that remark and also rejected claims of rudeness to Ms Cunningham or that the removal of her ovary was unnecessary.

In his reserved judgment on whether the proceedings are statute-barred, Mr Justice O Caoimh said he was satisfied the three-year limit begins to run from the time Ms Cunningham had knowledge that the operation to remove her ovary was unnecessary, as alleged.

He was satisfied Ms Cunningham had neither constructive nor actual knowledge that the operation was unnecessarily performed until she received a report from Dr Richard Porter, a consultant obstetrician, in April 2001. She initiated proceedings in March 2002.

In those circumstances, the judge said he must rule in favour of Ms Cunningham and hold that her claim was not statute-barred under the Statue of Limitations.

He was also satisfied that, at no time in 1991, when the operation was performed, had Ms Cunningham contemplated legal action. Her complaint then related to the manner in which Dr Neary treated her. A letter of December 1998 from Ms Cunningham to the Medical Council, in which she complained of Dr Neary's alleged rudeness, did not suggest that she knew that the operation was, as alleged, unnecessary. The judge was told Ms Cunningham eventually received a reply from the Medical Council this year stating it had found no misconduct on the part of Dr Neary in relation to her case.