GP Defends Professional Negligence Claim About Breast Cancer Diagnosis in High Court

differential costs order

The High Court decision in Rossiter v Donlon is a useful one to look at when it comes to increasing our understanding of professional negligence, and what you need to prove to bring home such a legal action.

Background

The background to the case is that Ms. Rossiter sued Dr. Donlon for professional negligence arising from his advice and care in a consultation in which she presented with a history of an armpit lump.

Ms. Rossiter noticed a lump in her left armpit and after three months she went to Dr. Donlon. She was 32 years old at that stage in 2014. Dr. Donlon examined her left armpit and could not discern any lump. Dr. Donlon reassured her and told her to return to if the lump returned.

Ms. Rossiter attended Dr… Donlon, and other doctors, for approximately two years for the treatment of eczema but there was no further mention of the armpit lump.

In August 2016 she attended another doctor with a lump on her left breast and was diagnosed with terminal breast cancer.

Ms. Rossiter claimed the breast cancer could have been diagnosed earlier if she was referred to a Breast Clinic in 2014 by Dr. Donlon; she further claimed that Dr. Donlon had carried out an inadequate examination and had failed to carry out a breast examination in 2014.

Dr. Donlon’s evidence was that a breast examination was offered but this was declined, and she asserted that Ms. Rossiter agreed with her on the day that there was no lump present. Ms. Rossiter denied Dr. Donlon told her to return if there was a recurrence of the lump and she claimed that the lump persisted after the September 2014 consultation.

It was clear from the evidence of both parties that there were important conflicts of evidence on a number of points as to what was said at the September 2014 consultation. The Court preferred Dr. Donlon’s evidence on most heads, however, because she had made notes at the time of the consultation and these notes were preferred to the memory recall of Ms. Rossiter.

Dr. Donlon’s notes stated, “declined breast exam”. If the Court was to accept Ms. Rossiter’s evidence over the notes of Dr. Donlon it would meant that this note was a lie and added after the fact. This would be an extremely serious finding for the court to arrive at against a doctor and, furthermore, Ms. Rossiter’s legal team did not make this allegation or put this proposition to Dr. Donlon during cross-examination.

Expert medical evidence was produced by both sides as to the rate of tumour growth in an attempt to arrive at the likely size of the tumour in 2014. The evidence of Dr. Donlon’s expert witness was preferred and, on that basis, it was estimated that the size of the tumour in September 2014 would have been .6cm in size which is below the threshold size of 1 cm to have been discoverable on palpation by a GP at that time.

Negligence?

Mr. Justice Barr had to look at two questions when deciding whether Dr. Donlon was negligent or not:

  1. Should Dr. Donlon have insisted more strongly that Ms. Rossiter attend for a breast examination when it was declined?
  2. Should Dr. Donlon have arranged a review appointment at a later date?

It was decided that where both doctor and patient disagreed about the presence of a lump a further consultation should have been scheduled; however, in this case there was agreement that there was no lump and, therefore, no need to arrange a further consultation.

Mr. Justice Barr also found that even if Dr. Donlon was negligent in failing to refer Ms. Rossiter for a breast exam in 2014 this failure did not lead to any loss or injury.

He also held that, having regard to the rate of growth of the tumour from 2014 to 2016 when it was discovered, it would not have been detectable in September 2014 due to its small size.

Read the full decision here: Rossiter v Donlon [2019] IEHC 105

Secondary School Student’s High Court Application to Halt Disciplinary Rejected

summary judgment

A secondary school student has had his High Court legal action thrown out by the Judge.

The background is the student was suspended from a secondary school over the allegation that he had sold €20 worth of cannabis in the school. The student admitted using the cannabis which was found in his schoolbag on the school premises.

He denied, however, he was involved in supplying the drug.

His application to the High Court was grounded on his assertion that the decision which would be arrived at as part of the disciplinary procedure was contaminated and prejudged as he claimed the school principal had contaminated the process by reason of his making findings of fact as part of the investigation stage.

He also alleged he would not be able to challenge the evidence against him at the proposed disciplinary hearing held by the board of management of the school and claimed an absence of fair procedures to date.

The Judge did not agree.

Premature application

The Judge in this High Court application said the application was premature and came nowhere near meeting the threshold for court intervention.

Justice Simons pointed to the fact that the school disciplinary process had not yet been completed and even when it was completed there was a statutory appeal process open to the student pursuant to section 29 of the Education Act, 1998.

This section 29 appeal involves a full hearing of the case on its merits before a committee of 3 persons appointed by the Department of Education. This should be availed of before heading off to the High Court, said Justice Simons.

The Judge stated that availing of these procedures would be cheaper and faster than going to the High Court and rejected the student’s application to judicially review the proposed disciplinary process. Justice Simons commented that this application could cost six figures in legal costs.

Interestingly Justice Simons also commented that school boards would be very slow to expel students if they are exposed to significant legal costs, even if they won their case, and a decision by him to grant the application wold have a ‘chilling effect’ on school boards of management.

In summary, the Judge said this application was premature and the student should have availed of the cheaper and faster procedures open to him rather than going to the High Court to try to halt the disciplinary.

Interest on Judgment Debts-What You Need to Know

Are you concerned about interest accumulating on a judgment against you?

Or are you a creditor seeking to recover a reasonable amount of interest on money rightfully due and owing to you?

When a debtor obtains a judgment against a creditor he may also be entitled to interest on the judgment amount pursuant to section 22 of the Courts Act, 1981. This interest order is at the discretion of the Judge concerned.

Interest begins to run on the judgment amount (not costs) from the day the judgment is granted.

The discretion of the Court to award interest or not was raised in Reaney v Interlink Ireland Ltd [2016] IECA 238. Judge Finlay Geoghegan, in this Court of Appeal case, described the rationale behind Courts Act interest as follows:

“To put it another way: it is intended to compensate a person for being out of the money awarded from the time he ought to have received it to the date of judgment, provided, however, other facts make it just between the parties to make such an award.”

This Reaney v Interlink Ireland Ltd case is a good one to review to see what the considerations of a Court will be in deciding whether to award interest or not.

The rate of interest was set at 8% per annum from 1989 pursuant to section 26 of the Debtors (Ireland) act, 1840. This rate was reduced from 8% to 2% per annum in the Courts Act 1981 (Interest on Judgment Debts) Order 2016 (SI 624/2016) with effect from 1st January, 2017.

You can read the full decision in the Court of Appeal in Reaney & ors -v- Interlink Ireland Limited (t/a D.P.D.) [2016] IECA 238.

Personal Injury Claims Changes from Jan & April 2019

Some changes have been made to the way in which personal injury claims are to be pursued in Ireland; some of the changes commenced in January 2019, others from April 2019.

Let’s take a look.

Section 8 of the Civil Liability and Courts Act 2004 provides that a letter of claim must be served within 2 months of the date of the cause of action. From January 2019 this has been reduced to 1 month.

The amended section 8 also states that the court hearing the action shall draw such inferences as appear proper from the failure to serve the letter; it was the case that the court “may” draw such inferences.

Here is the amended section 8:

Letter of claim.

8.—(1) Where a plaintiff in a personal injuries action fails, without reasonable cause, to serve a notice in writing, before the expiration of F1 [ one month from the date of the cause of action, ] on the wrongdoer or alleged wrongdoer stating the nature of the wrong alleged to have been committed by him or her, F1 [ the court hearing the action shall ]

( a) draw such inferences from the failure as appear proper, and

( b) where the interests of justice so require—

(i) make no order as to the payment of costs to the plaintiff, or

(ii) deduct such amount from the costs that would, but for this section, be payable to the plaintiff as it considers appropriate.

(2) In this section “date of the cause of action” means—

( a) the date of accrual of the cause of action, or

( b) the date of knowledge, as respects the cause of action concerned, of the person against whom the wrong was committed or alleged to have been committed, whichever occurs later.

Verifying affidavit

Section 14 of the Civil Liability and Courts Act 2004 provides for a verifying affidavit. This section is changed as follows:

 (4A) Where there is a failure to comply with subsection (4) , the court hearing the personal injuries action concerned shall—

(a) draw such inferences from the failure as appear proper, and

(b) where the interests of justice so require —

(i) make no order as to the payment of costs to the party responsible for the failure, or

(ii) deduct such amount from the costs that would, but for this subsection, be payable to the party responsible for the failure as it considers appropriate. ]

These changes came into effect from 28th January 2019.

Personal Injuries Assessment Board (Amendment) Act 2019

This act commenced on 3rd April 2019. Some of the “highlights” include:

  • Section 51C provides that the Court may penalise claimants and respondents as to costs where they have not complied with a request made by the PIAB assessors for additional information or documents; to provide assistance to experts retained by the PIAB or furnish information or documents or co-operate with those experts; or for the claimant to submit himself or herself to a medical examination.
  • A medical report is not now necessary with the application to the Injuries Board to stop the clock from running for the Statute of Limitations; submitting form A is sufficient and PIAB will serve a preliminary notice on the respondent but will not serve the formal section 13 notice and commence the 90 day period until a medical report is received.

Here is the Personal Injuries Assessment Board (Amendment) Act 2019 in full.

The Quinn Children Consent to Judgments Totaling €440 Million

There was a large group of photographers outside the entrance to the Four Courts a few weeks ago as I walked out to the WRC in Ballsbridge for an employment hearing. As I walked past the building entrance the targets of their interest strolled down the street to enter the Round Hall and I guessed, correctly, who they were: “the Quinn children”.

When I say “the Quinn Children” I refer to the adult children of Ireland’s once wealthiest man, Seán Quinn.

Even if I never met them that morning on the quays by sheer coincidence I would have had an interest in their case.

Because their case was one in which they, the Plaintiffs in the action, were suing IBRC, formerly known as Anglo Irish Bank. Their claim was that €415 million guarantees they provided for loans to the Quinn Group in 2007 and 2008 were invalid and, therefore, unenforceable.

When I read that this was the basis of their claim-their cause of action-I was interested to see how they were going to win that argument. For it is an argument that has been made, for the last 10 years or so, by many small business owners, wives and girlfriends of small company directors, who argued that they could not be held to the guarantee they signed.

For all sorts of reasons-for example, signing a document in the kitchen of their home for their spouse who was a small business owner and discovering years later that this document was, in fact, a guarantee and the lender now wanted to be paid.

So, I kept an eye on the case as it was reported in the papers and on TV/radio.

It appeared to be the case that the Quinn children were claiming that they were put under undue influence by their father, Seán Quinn, into signing the guarantees. And what’s more, they claimed they were naïve, inexperienced, and unsophisticated and didn’t understand what they were doing or the significance of the papers they were signing.

This line of argument was, as you would expect, rejected by the bank’s lawyers who pointed out that these ‘children’ were experienced, well educated, professional adults and the notion that they did not understand what they were signing or what it meant was fanciful nonsense.

Significant ruling by Judge-game changer?

But the case took an unexpected turn last week leading to settlement talks which are ongoing. These talks commenced after the Judge, Justice Simons, made a significant ruling in the case.

This ruling hinged on the fact that the Quinn children sued the bank, IBRC, on the basis that the bank had unduly influenced them; but when it came to running the case and giving evidence the case put forward appeared to be that it was Sean Quinn who was the culprit in point of undue influence and overbearing their minds, not IBRC, the defendant.

And last week the children applied to Court to change their statements of claim to reflect this and wished to file supplementary written statements.

Justice Simons, however, refused to grant orders along these lines. He also stated that the argument that their pleadings in the case that Sean Quinn had unduly influenced them were “untenable”. He also said that they

“were unequivocal in stating that the entity against whom the allegation of undue influence was being made was Anglo…Not only is no claim of undue influence made against Sean Quinn Snr in the pleadings, the making of any such claim would, in any event, be entirely inconsistent with the manner in which the litigation has been conducted to date.”

Justice Simons also stated that if Sean Quinn was the ‘guilty’ party in respect of undue influence he should have been named as a defendant. When he asked counsel for the Quinn children why statements along their present course of argument were not included in their original witness statements counsel for the Quinn children admitted there was ‘’no good reason’’.

Significantly Justice Simons decided that if he allowed this change in approach by the Quinn children it would cause prejudice to the defendant, IBRC, as it would not now know what case it was expected to meet.

Moreover, IBRC had a counterclaim against the Quinn children and was entitled to bring that case along without further delays, especially having regard for the fact that this case commenced in 2011.

This ruling, I suspect, was a game changer and prompted the settlement talks.

What I find fascinating about this case, however, is why the claims of undue influence alleged against Sean Quinn were not included in the original statement of claim of the Quinn children.

If you never knew anything about the law, or how legal proceedings are conducted generally, you would probably be raising your eyebrows at a claim of wrongdoing against one party for 8 years and then, when the case is being heard and evidence is being adduced, somebody else is being fingered as the culprit.

You might also raise your eyebrows a little further, I believe, if you knew that all parties in the case had legal professionals who were at the top of their profession and as good as ready money could instruct.

As an outsider looking in I find it fascinating that the case took the turn it has taken as I was looking forward to seeing the final judgment in a high stakes, high profile case. If settlement talks are successful we will never know, although I had my own strongly held opinion which shall remain unventilated.

UPDATE 3rd April, 2019

I held off publishing this post for a couple of days as settlement negotiations were ongoing between the parties. The outcome of those talks were that the Quinn children consented to judgments totaling €440 million being entered against them. This is €88,157,351 against each of them.

They also accepted that IBRC (formerly Anglo Irish Bank) had valid and enforceable claims on the Quinn assets which were the subject of the securities.