Proper Order: Discovery before Defence
18 March 2020
High Court decision provides that a plaintiff in medical negligence proceedings must make discovery of clinical records before seeking the hospital’s defence.
In the case of Orla Van Der Zaan v. The National Maternity Hospital  IEHC 83, Justice Barrett of the High Court (on 24th February 2020) held that the plaintiff, Orla Van Der Zaan, must provide the defendant hospital with copies of her clinical records, in circumstances where the hospital informed her previously that that they could not locate her relevant clinical records and were therefore, unable to produce a defence.
The plaintiff’s action was in connection with an ectopic pregnancy and arose out of a salpingectomy procedure (i.e. the surgical removal of a fallopian tube) at the National Maternity Hospital, Dublin on the 4th May 2017.
In March 2019 the State Claims Agency asked the plaintiff’s solicitor to provide a copy of her medical records but these were not provided. Shortly afterwards, in April 2019, the plaintiff’s solicitor issued a 21-day warning letter, seeking the hospital’s defence. In May 2019 the plaintiff’s solicitor wrote to the defendant hospital, stating that they had been served with a “detailed personal injury summons”, it had access to its own hospital records and that, once a defence was delivered the hospital would then be entitled to seek discovery.
The National Maternity Hospital wrote to the plaintiff’s solicitor, stating that the “original chart” had been mislaid and that it understood that Orla Van Der Zaan had a copy of the chart and the hospital was therefore requesting a copy of the missing (relevant) records from the plaintiff. The plaintiff’s solicitor replied, asserting that there was no basis to depart from the ordinary rule whereby a discovery request would be dealt with once the hospital had served its defence and pleadings had closed.
The plaintiff’s solicitor issued and served a motion for judgment in default of defence in January 2020. The hospital replied with a voluntary discovery request and a letter, stating that it was entitled to all ‘relevant documentation’ that should accompany the grounding affidavit of the motion.
Justice Barrett’s decision addressed the Supreme Court’s reasoning in McGrory v ESB  3 IR 407 (judgment delivered on 24th July 2003) in which Keane CJ gave the green light to defendants to seek full access to plaintiffs’ relevant medical records as soon as the plaintiff serves proceedings. In McGrory, this included the right to have the plaintiff medically examined and to interview the plaintiff’s treating doctors to obtain information relevant to their medical condition. Justice Barrett ordered that, as the defendant hospital had mislaid the chart in question, and that chart was needed by the defendant to engage experts to produce reports, the defendant was effectively, “hamstrung” in terms of investigating matters and examining breach of duty and causation.
Having regard to the facts before him and the Supreme Court’s decision in McGrory, Justice Barrett directed that: (1) the plaintiff provide the defendant with a copy of the relevant clinical records; and (2) a defence to the proceedings be entered with 12 weeks of receipt of the relevant records.
In this case, Justice Barrett repeats that the decision in McGrory concerns ‘relevant’ medical records only and filters a number of useful principles from the decision in McGrory, namely that:
- It encourages the promotion of settlements;
- It is authority for the Court’s inherent jurisdiction to order a stay under three separate situations where the plaintiff: (a) refuses to submit to medical examination; (b) refuses to disclose medical records to the defendant; or (c) refuses to permit the defendant to interview treating doctors.