If you are considering bringing legal proceedings for professional negligence the Court of Appeal has recently confirmed you will need an expert report or opinion. If you do not have such an opinion your claim is ‘bound to fail’ according to the High Court in Andrew Mangan (a minor) v Julian Dockeray and By Order Brian Denham and Mount Carmel Hospital.
In this case Mr. Mangan’s case against the defendants was dismissed by reason of the absence of expert medical evidence.
Background
Mr. Dockeray, a consultant obstetrician, had provided antenatal care to Mr. Mangan; Mr. Denham, a paediatrician, had provided neonatal care and Mount Carmel Hospital was where Mr. Mangan was born in 1995. It was at the time of his birth that Mr. Mangan had suffered various injuries including cerebral palsy.
In 2008 Mr. Mangan brought legal proceedings against Mr. Dockeray, the obstetrician. Mr. Dockeray brought an application to join Mr. Denham and Mount Carmel Hospital and this application was grounded on an affidavit of Mr. Dockeray’s solicitor. This affidavit stated that an expert opinion had been obtained by Mr. Dockeray and this expert report criticised the care provided by Mr. Denham and the hospital. This expert report was not exhibited in the solicitor’s affidavit, however, and Mr. Mangan never had sight of it.
Application to joint defendants
Mr. Mangan’s application to join the second and third defendants to his proceedings succeeded but Mr. Mangan confirmed he did not have any expert opinion or report which supported his claim against the second and third defendant; he was relying on the expert report of Mr. Dockeray’s, a report he had never seen.
The second defendant, Mr. Denham, the paediatrician and Mount Carmel hospital applied to have the proceedings against them struck out on the basis that Mr. Mangan had no expert report alleging negligence against them as required by the Rules of the Superior Courts (Order 19 Rule 28). Their argument was that the action against them had no prospect of success and was frivolous and vexatious, particularly in the absence of expert opinion against them.
Mr. Mangan was relying on the affidavit of Mr. Dockeray’s solicitor alleging negligence against Mr. Dockeray and the hospital but neither Mr. Mangan nor his legal team had seen this expert medical report.
High Court Decision
The High Court dismissed Mr. Mangan’s claim against the hospital and Mr. Dockeray for he had never made any allegations against them. Moreover, Justice Binchy found
- Mr. Mangan’s expert report made no connection between his injuries and Mr. Dockeray and the hospital
- Mr. Mangan could have sought more time to obtain his own expert report but had not done so
- When a plaintiff declines to make any allegations against another party his pleadings will not disclose any reasonable cause of action, contrary to Order 19, Rule 28 of the Rules of the Superior Courts
- It would fly in the face of logic to allow a claim against two defendants in circumstances where Mr. Mangan had made no allegations against them and he was merely relying on an affidavit of another solicitor which makes reference to a medical report but does not exhibit it in the affidavit.
Court of Appeal
Mr. Mangan appealed the decision of the High Court to the Court of Appeal and sought more time to obtain his own expert medical opinion. The Court of Appeal did not allow his appeal and decided the High Court had correctly applied the law to the facts of the case.
The Court of Appeal held that, having regard to the long timeline involved in this case, to give Mr. Mangan further time would be unfair to the hospital and the paediatrician.