A hospital has lost, by a four to one majority, a Supreme Court appeal aimed at preventing a man suing it for damages over allegedly contracting a severe MRSA infection during surgery.

The appeal by the Bon Secours Hospital in Cork centred on whether Oliver O’Sullivan’s claim was statute barred, brought outside the two year period for personal injuries suffered due to alleged negligence and breach of duty.

The Supreme Court agreed to hear the appeal because it raised issues of general public importance concerning proper interpretation and application of sections 2 and 3 of the 1991 Statute of Limitations Act.

On Thursday, Ms Justice Mary Finlay Geoghegan said all of the judges agreed that reconsideration of the complex statutory limitation periods applicable to personal injury actions is “desirable”.

Mr O’Sullivan, with an address at Cul Ard, Carrigtwohill, Cork, issued a personal injuries summons on August 19th 2008 alleging he contracted MRSA during surgery on September 20th 2005 due to alleged negligence and breach of duty by the hospital. No negligence was alleged concerning the actual intestinal surgery, carried out when Mr O’Sullivan was aged 25.

As a result of contracting a severe MRSA infection, Mr O’Sullivan became very ill, was re-admitted and underwent further surgery.

In a pre-trial application, the hospital claimed the action was not commenced within two years of accrual of the cause of action, or from the date of knowledge of that, if later, within the relevant provisions of the 1991 Act.

After a 2/1 Court of Appeal majority upheld a High Court refusal to halt the case, the Supreme Court heard a further appeal.

Medical records

On Thursday, Ms Justice Finlay Geoghegan, Mr Justice William McKechnie, Ms Justice Elizabeth Dunne and Mr Justice Peter Charleton allowed the appeal. Mr Justice Donal O’Donnell dissented.

Ms Justice Finlay Geoghegan said the issue was whether or not Mr O’Sullivan’s date of knowledge within the meaning of section 2 of the 1991 Act was on or after August 20th 2006, with the effect the personal injury summons issued on his behalf on August 19th 2008 was within the two year limitation period.

According to agreed facts for the appeal, Mr O’Sullivan became infected with MRSA on September 20th 2005 during an operation at the hospital, she said. When he was very ill on October 4th, a doctor told him he had been infected with MRSA during the earlier surgery.

In March 2006, his mother watched a TV programme about people who had become infected with MRSA in hospitals in Ireland, told her son about it and gave him the number of a participant in the programme. Mr O’Sullivan then contacted a solicitor explaining he had “picked up” MRSA in hospital and wanted to find out what happened to him and what went wrong.

In May 2006 he sought his hospital medical records and got those on July 17th 2006, including a report on a swab collected on September 30th 2005 stating ‘MRSA (heavy growth) isolated’.

Full case has still to be heard

In February 2007, a preliminary report was received from a doctor, a final report from a consultant surgeon and microbiologist was received in June 2008 and the personal injuries summons was issued on August 19th 2008.

Having considered the facts, including receipt of 800 pages of medical records in July 2006, and the applicable legal principles, Ms Justice Finlay Geoghegan found the date of knowledge was sometime after August 20th 2006.

Her judgment set out guidance on how to determine a plaintiff’s date of knowledge for the purpose of Section 2, distinguishing between “actual” and “constructive” knowledge.

In a concurring judgment, Mr Justice Charleton also set out factors to be considered in such cases.

Noting the full case has still to be heard 13 years after the alleged wrong, he said this case showed how a departure from a unitary trial principle had “not aided the administration of justice”.

Dissenting, Mr Justice O’Donnell said he had set out his minority view concerning correct interpretation and application of the 1991 Act because the limitation periods may require to be reconsidered and a “fresh approach” taken.

Noting a proposal to extend the general period to three years, he said specific attention could usefully be addressed to the difficulties posed by claims arising from alleged medical negligence.