Date of knowledge did not arise until receipt of report in medical negligence action

Relief sought in action: Damages for medical negligence
Application before the court: Appeal on issue of limitation period and relevant 'date of knowledge'
Outcome: Appeal dismissed.

Charleton J (nem diss): Medical negligence - limitation of actions - section 3 of the Statute of Limitations (Amendment) Act 1991 - date upon which plaintiff 'first had knowledge' of certain information - date of knowledge - operation in December 2007 - perforation of bowel - review on 27 March 2008 - whether plaintiff aware at review that 'something had gone wrong' - deterioration of condition over following years - medical records requested in February 2011 - references to a perforation - report received in May 2012 - proceedings issued in August 2012.

"From the point of view of an appeal, the finding of fact by Cross J which must stand is “that it was only when the plaintiff … received the medical records that the basis of the case and the attribution of the plaintiff’s injuries to the failures on 14th and 15th [December 2007] could be known.” To that it might usefully be commented that few plaintiffs are able to read medical notes and that interpretation is difficult save in the unlikely event that negligence is explicitly admitted on the face of them. Thus medical records are not of themselves always facts “knowable or ascertainable” by a plaintiff even upon receipt. A reasonable time to ascertain whatever fact is to be found within such notes, supposing them to have been sought at a time when it was reasonable to do so, and for an expert to report a fact that gives rise to a claim in negligence ought to be allowed. "

"Certainly it is accurate that there was a substantial, approximately two year gap, during which nothing was happening from January 2009 to January 2011. However, it is also the case that on consulting the second surgeon in January 2009, the plaintiff had been steered in the direction of thinking that his abdominal condition arose due to the natural progression of a pre-existing condition. At that consultation, the trial judge noted that the surgeon advised against any further surgery, due to reasons such as the difficulty in repairing the hernia and the risk of further infection, which meant the plaintiff “accordingly did nothing about the problem and hoped that his condition would improve.”

O'Donnell J (concurring): Plaintiff given incorrect advice by treating medical practitioners - whether plaintiff had sufficient information when he attended his solicitor in January 2011 - pre-existing condition -

"I agree that the decisions in all these cases are fact specific, and it is probably true that both the O’Sullivan case and this case lie close to what is a difficult dividing line. The critical feature in this case is, I consider, that the plaintiff was given to believe, both by his treating surgeon and by the consultant surgeon to whom he was referred by his GP, that the condition from which he suffered was an unfortunate but not uncommon consequence of the surgery which it was necessary to perform."

"There is a spectrum in cases of medical negligence which can perhaps be illustrated by two somewhat exaggerated examples lying at either extreme. One is the situation where a procedure, say an amputation of a limb, is carried out competently, but the advice to have that procedure is later alleged to have been wrong and negligently given. At the other extreme, to take the same example, is a case where the amputation of a limb is intended, but the wrong one is removed. In the first case, on the approach I take to the section, I do not consider time can be said to run until the plaintiff has some reason to believe that the advice was wrong or questionable. In the second case, however, time would run immediately, and it would not be necessary to seek any expert advice before it could be said the plaintiff acquired the requisite knowledge for the purposes of s. 2(1)(c)."

"The knowledge the plaintiff has or can be deemed to have at any point cannot be approached in the abstract. Not only did the plaintiff not receive any such knowledge or information in January 2009 which would lead him to question the competence of his original treatment, he was, if anything, pointed in the opposite direction. The outcome of his meeting with his treating surgeon, and the later consultation with the new consultant surgeon, both suggested, if anything, that his condition was an unfortunate but relatively common outcome."

McKechnie J (concurring): [judgment not yet available]