A Co Louth consultant obstetrician/gynaecologist, Dr Michaal Neary, has lost a High Court bid to prevent a woman bringing an action against him alleging he unnecessarily removed her womb after she gave birth to a stillborn infant in August 1988.
Mrs Margaret Lynch, Church Lane, Tullyallen, Co Louth, is suing Dr Neary and Our Lady of Lourdes Hospital, Drogheda, for damages for personal injuries arising from the hysterectomy.
Lawyers for Dr Neary today argued the court should strike out the case because of the delay in bringing the proceedings, which were initiated in 2003.
It was claimed that, due to that delay, relevant contemporaneous records were not available from the hospital, where the operation was carried out, and that he would not be in a position to defend the action without these records.
In refusing an order striking out the action on grounds of delay, Mr Justice Butler said Dr Neary argued there was inordinate and inexcusable delay on the plaintiff's side in commencing the proceedings and that the action should be struck out on the basis of delay alone.
It was alleged that Mrs Lynch had first become aware of her cause of action in 2001, when she visited a GP.
Proceedings were instituted on her behalf in November 2003. The judge said Dr Neary had alleged, on the basis of what was described as voluntary discovery on the hospital's part that he was prejudiced in that all relevant documents were unavailable.
What Mrs Lynch alleged against the defendants was a most serious matter for her and the present application must be considered in the light of her constitutional right of access to the courts which she, along with all others, enjoyed, the judge said.
The court undoubtedly had an inherent jurisdiction to dismiss proceedings where there was inordinate and inexcusable delay and, in suitable cases, on the basis of delay alone.
However, it must be very careful in exercising that jurisdiction. To exercise that jurisdiction at this stage would be to deprive Mrs Lynch - who, on her case, had suffered gravely and was not at fault for the delay - of her right to even present her case.
Mrs Lynch did not accept that documents had been destroyed or were no longer available, the judge said.
The judge said he was satisfied that the prejudice which Dr Neary alleged as a result of delay had not yet been established and he refused the application.