In the High Court case of A (A person with disabilities) suing by his mother and next friend AA v HSE & Anor[1], the Court refused the Defendants' application to dismiss the clinical negligence claim but imposed a Litigation Restriction Order ("LRO") on the plaintiff and his mother due to a history of repetitive litigation.
Brief summary of facts
This case involved plaintiff 'A', a 21-year old man who brought personal injuries proceedings alleging medical negligence following his premature birth which led him to contract MRSA and sepsis, resulting in the partial loss of his left foot.
Furthermore, it was alleged that 'A' incurred other injuries resulting in him being diagnosed as autistic after he reached 18 and that hospital records had been fraudulently altered.
The plaintiff, assisted by his mother, issued eight sets of proceedings in total. As 'A' was not a ward of court or subject to an Order under the Assisted Decision Making (Capacity) Act 2015 (the "2015 Act"), his mother sought leave of the Court to represent him personally, without the benefit of legal advice.
Application by defendants
The defendants (the HSE & Cork University Hospital) brought an application to dismiss the proceedings as disclosing no cause of action, being bound to fail and/or as constituting an abuse of process on the basis of a lack of medical expert evidence to support them. They also sought an LRO, restricting the plaintiff, his mother or any other person to institute further proceedings in respect of any treatment he received prior to his birth.
In this case, the plaintiff relied on an expert report to support the claim of negligence and causation. Judge Hyland refused to dismiss the plaintiff's claim on the basis that the expert report “just about” met the threshold required. While the Court remarked that the report lacked clarity, it did contain suggestions of causation and therefore it was sufficient to refuse a dismissal.
In respect of the LRO, 'A'’s mother advised the Court that a LRO was not necessary as 'A' did not intend to take any further proceedings. Judge Hyland found that 'A'’s mother could not bind 'A' as to what proceedings he will take in the future given she was not a ward of court or a decision maker under the 2015 Act. Judge Hyland granted the LRO.
Key takeaways for insurers
Judge Hyland's judgment considers the rules requiring plaintiffs to obtain appropriate supportive expert evidence in clinical negligence claims prior to proceedings. Further, the judgment is a warning against litigating the same events in different sets of proceedings given the significant cost and time burden on the parties and the courts.
