Irish Court of Appeal confirms need for expert evidence to support a medical negligence claim
05 November 2020
The Appellant, Frances Kelly, who did not have legal representation, appealed the High Court decision of Mr Justice Barr dismissing the proceedings taken by the Appellant (then Plaintiff), on the basis that a prima facie case had not been established.[i] Mr Justice Barr referred to the judgment of the Supreme Court in Sugg v O’Keeffe & Anor  IESC 92 wherein Mr Justice Geoghegan stated “A court will never hold a professional person guilty of negligence without professional evidence from another professional supporting the assertion of the claim of negligence and that is wholly absent here.”
Grounds of Appeal
In her grounds of Appeal, the Appellant failed to identify why the High Court Judge erred in law. The Appellant pleaded that the Respondents were liable for their failures and delays in the provision of her medical care and treatment.
Amongst other submissions, the Appellant contended that the Trial Judge failed to mention in his judgment the duration of the delay in her treatment. The Appellant submitted that her expert report from Professor Ayoub was “wholly ignored” and that the Trial Judge refused to accept her “documentation”. The Appellant also raised further allegations as against the Respondents in relation to consent.
The Respondents’ submissions detailed the Appellant’s failure to plead an allegation of a lack of informed consent, which was raised by the Appellant during the course of the Trial. The Respondents contended that the Appellant made no application for adjournment or for leave in order to have Professor Ayoub attend the Trial. Furthermore, the Respondents outlined the legal authorities which they had opened to the Trial Judge (Hetherington v Ultra Tyre Service Ltd  2 I.R. 535, O’Toole v Heavey  2 I.R. 544 and Sugg v O’Keeffe & Anor  IESC 92), none of which the Appellant had suggested in her papers filed, that the Trial Judge erred in its application of these legal principles. Finally, the Respondents highlighted that the Appellant’s expert report dated 5th November 2010 was prepared more than 7 years after the commencement of proceedings.
Court of Appeal Discussion
The Court of Appeal confirmed that a Plaintiff is obliged to adduce expert evidence to support his/her claim (Dunne v. National Maternity Hospital  I.R. 91) and further, to prosecute a medical negligence claim in the absence of the requisite evidence, amounts to an abuse of process (Reidy v. National Maternity Hospital  IEHC 143).
Ms Justice Power also highlighted that, despite the Appellant’s sincere belief that the Respondents were negligent in the care they provided to her, “that belief, in itself, is insufficient to ground proceedings alleging professional negligence”.
The Court of Appeal further dismissed the allegations raised by the Appellant in relation to consent, as they were not properly before the Court of Appeal.
The judgment of Barr J to dismiss the Plaintiff’s claim in the High Court was upheld. Counsel for the Respondents informed the Court that her clients were willing to waive their entitlement to costs incurred, including the High Court costs. The Court of Appeal, therefore, made no order as to the costs of the Appeal.
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[i] Frances Kelly –v- Professor Duncan Sleeman, University College Cork, National University of Ireland and the Southern Health Board  IECA 293