Action against Neary is statute barred

Louth consultant obstetrician Dr Michael Neary and Our Lady of Lourdes Hospital, Drogheda, have won their Supreme Court challenge to a High Court ruling that a Co Cavan woman may sue them for damages over Dr Neary's alleged unnecessary removal of her left ovary in 1991.

The three judge Supreme Court yesterday unanimously found that the proposed action by Ms Rosemary Cunningham is statute barred - brought outside the three-year legal time limit. The court will deal with who pays the costs of the action on Friday.

The outcome of the appeal may affect other actions brought regarding Dr Neary's performance of allegedly unnecessary Caesarean hysterectomies and other procedures. It is believed 60-70 summonses have been issued against Dr Neary and the number could yet reach 120.

After yesterday's decision, Ms Cunningham said: "I'm disappointed with the outcome of the case and hope it won't deter other women from taking actions."

In March 2002, Ms Cunningham, of Corlea, Kingscourt, Co Cavan, initiated 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 August 1991. She claimed he wrongfully removed her left ovary after she was admitted to the hospital with an ectopic pregnancy.

In her evidence to the High Court hearing, Ms Cunningham said that when she asked Dr Neary why he had removed her left ovary, he had shouted: "I didn't like your bloody ovary anyway." She alleged he had said: "By church law, I should not have laid a finger on you and you should be six feet under. I saved your life and you should be grateful." The court was told Dr Neary denied making such a remark and also rejected claims of rudeness to Ms Cunningham or that the removal of her ovary was unnecessary.

The High Court ruled last October that the three-year limit began to run from the time Ms Cunningham had knowledge that the operation to remove her ovary was unnecessary. It found 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.

In their appeal to the Supreme Court, counsel for Dr Neary and the hospital argued that Ms Cunningham had sufficient information in 1998 to establish a cause of action.

In his Supreme Court decision, Mr Justice Fennelly agreed. He said it seemed clear Ms Cunningham had a conversation with a nurse in the Coombe hospital in late 1998, where she was attending for a hysterectomy, in relation to her experience with Dr Neary. The nurse had encouraged her to complain to the Medical Council, "a very serious step".

In a letter of December 19th, 1998, Ms Cunningham had made a number of grave allegations against Dr Neary, including an account of two separate complaints about the absence of any explanation for the removal of her ovary. (No response was received from the council until 2003.) Ms Cunningham had also learned from media reports in 1998 that a number of women had made serious complaints about Dr Neary, the judge added.

Thus, when Ms Cunningham wrote to the council in December 1998, she had knowledge that Dr Neary had removed her ovary in 1991, that she had twice asked him why he had done so, that she had received no explanation at all and that other women had made serious complaints about him.

This knowledge was such that it was then "reasonable" for her to seek medical or other expert advice. If she had gone to a solicitor in December 1998, she would have obtained the sort of advice that would have made out a case in negligence against Dr Neary.

Therefore, the key fact that the removal of her ovary had been unnecessary was, as the Statute of Limitations provided, "ascertainable" in late 1998 and Ms Cunningham was deemed to have knowledge of it at that date. Consequently, the three-year period began to run from December 19th, 1998, and the claim was statute barred.

Mr Justice Fennelly also remarked that this case was very different from another taken against Dr Neary by Ms Alison Gough. In that case, the Supreme Court held Ms Gough's claim was not statute barred.

In a separate judgment, Ms Justice McGuinness said that, while one "could not but have sympathy" for Ms Cunningham's position and it was very unfortunate that the issuing of her proceedings was so long delayed, there was no doubt the claim was statute barred.

Mr Justice Hardiman agreed.