It has for centuries been one of the bedrock principles of a just society that if you have suffered a wrong, you can seek redress from the courts. This week's Supreme Court ruling in the Rosemary Cunningham case creates a very real danger that hundreds of women may now be denied their fundamental right of access to the courts.
In 1991, Rosemary Cunningham had her left ovary removed by Michael Neary in Our Lady of Lourdes Hospital in Drogheda. She received no explanation for this, and she believes the surgery to have been unnecessary. Last Tuesday, the Supreme Court refused her permission to have her case heard in court.
The reason for this denial of justice to Rosemary Cunningham is alarmingly arbitrary. Under the Statute of Limitations, she had three years to file her case. The start of that period is judged to be from the moment she became aware that she had suffered an injury. The Supreme Court judges decided that Rosemary knew of her injury in December 1998, when she wrote a letter of complaint to the Medical Council. Consequently, the Statute clock started ticking at that stage, and the three-year period was up in December 2001. Rosemary filed her suit in March 2002, barely three months outside the court's timeframe.
Rosemary herself said that while she feared the worst in 1998, she didn't actually know that she had been injured until 2001, when she received the independent medical opinion confirming this from British obstetrician Dr Richard Porter. Hence the Statute period should run from 2001, and not 1998.
The courts themselves have strict procedures governing when you can file a claim. You must have a sound basis for your case, and in the area of medical negligence this effectively means that you need independent expert medical opinion. This was stated very clearly by Mr Justice Barr in the High Court (Reidy v National Maternity Hospital, 1997), and endorsed by Ms Justice Denham in the Supreme Court (Cooke v Cronin, 1999).
Rosemary Cunningham had quite properly waited until the arrival of the expert medical opinion before filing suit. To have done otherwise would, in the words of Mr Justice Barr, have been "irresponsible and an abuse of the process".
However, it is now precisely because she followed this established procedure that Rosemary has been so severely punished by the Supreme Court. In their judgment on her case last Tuesday, none of the Supreme Court judges referred to the court's previous ruling in the Cooke v Cronin case.
It is clearly arguable that the court is being inconsistent in its application of the Statute of Limitations. There is no doubt that its decision will be draconian in its effect, wiping out access to the courts for a very large number of women injured by doctors. Many of the likely 130 cases against Michael Neary will now fall, and the same may happen to the hundreds of women injured as a result of symphysiotomy, the barbaric procedure which, as one doctor put it, opened up women like a hinge by widening the pelvis during childbirth.
By any normal standards, this can only be construed as a gross injustice. In the UK, for instance, the arbitrary and potentially unjust nature of the statute of limitations has long been recognised. British law states that the limitation period can be set aside where it is "equitable" to do so.
In other words, the UK courts give weight to the concepts of justice and fairness in this area. In Ireland, no such provision exists, and statements from the courts about their belief in justice in this regard are as rare as loss-making insurance companies these days.
While a case can certainly be made for the Supreme Court to take a more liberal view here, there is also a critical onus on the political system to ensure that no one is unfairly denied access to the courts.
The Government has long known that the three-year limitation period for medical negligence cases has been a difficulty for a significant number of injured patients. Victims may not be fully aware for years of the true cause of their symptoms, and the cases themselves are often highly complex.
In this context, recent Government action beggars belief. In the Civil Liability and Courts Bill 2004, which finished its passage through the Oireachtas earlier this month, the Minister for Justice, Mr McDowell, has actually reduced the limitation period for medical negligence cases from three to two years. And, unlike the UK, no exceptions are to be allowed.
Mr McDowell made much in the Dáil about how terrible it is for doctors to have cases hanging over them. He did not evince the same concern for the misery caused to patients living with (or indeed dying from) the consequences of medical injury.
There are clear signs that the balance both in the Oireachtas and on the Supreme Court is now shifting in favour of the professionals/insurance companies and against the victim. Concepts of justice, equity and fairness appear increasingly remote in the rush towards so-called "reform" in this area.