The Gazette 1967/71

PRACTICE Woman sues County Council and Surgeon—Paralysed after operation,—Extension of time for statment of claim. A Co. Kerry woman, who, it was stated was now a complete physical wreck after a neck operation in St. Catherine's Hospital, Tralee, in July, 1962, was granted leave by the Supreme Court yesterday to lodge a state ment of claim against Kerry County Council and Surgeon Colm Galvin, of Tralee. An application on behalf of Miss Mary Dowd, of Ardfert, Tralee, for an extension of time for the service of the statement of claim was refused by the Master of the High Court in November, 1968, and on the following month this decision was upheld on appeal by Mr. Justice Murnaghan. In her plenary summons, Miss Dowd seeks damages for personal injuries due to the negligence, breach of contract, and breach of statutory duty of the defencants, their servants or agents, or one or other of them. Chief Justice Cearbhall 6 Dalaigh, delivering a re served judgment in the Supreme Court yesterday on an appeal against the order of Mr. Justice Murnaghan, said that the court, in the particular circumstances, should not allow the delay which had occurred in the case, to prevent Miss Dowd's case being brought to trial. The originating summons had been issued on June 1st 1964 and the service was accepted by the defendants' solictiors later the same month. Both defendants con sented to an extension of time for the delivery of the statement of claim to the following October. The Chief Justice said that owing to further directions which counsel in the meantime had given as to certain steps which should be taken, Miss Dowd's solicitor was not then in a position to deliver the statement of claim. Almost four years later—on July 25th, 1968—Miss Dowd's solicitor again requested both defendants to consent to a further extension of time for the delivery of the statement. This request was refused, and the matter was then brought before the Master of the High Court. The Chief Justice said that Miss Dowd was admitted to the hospital on July 25th 1962 with a swelling on the left side of her neck. She was operated on the following day. Several hours after the operation she became para lysed on her right side. In April 1964, Miss Dowd's mother consulted her solicitor, Mr. Harvey, who wrote to the matron of the hospital and the secretary of the Health Authority asking for the names of the nurses who might have attended Miss Dowd. It was his intention to attend at the hospital to interview the particular nuiscs. When the secretary of the County Council asked for what purposes the information was required, Mr. Harvey replied by letter saying that Miss Dowd had entered the hospital for a simple operation, to have some alleged tubercular glands on her neck removed. "After this operation, she is now a complete physical wreck," Mr. Harvey wrote, adding: "I am investigating the possi bility of taking an action against all those concerned with this tragic occurrence." The Chief Justice said that on May 5th 1964, the County Secretary replied that the County Manager was not prepared to accede to the request. The following day Mr. Harvey wrote asking for the addresses of the particular nurses, and also the name or names of the doctors who might have attended Miss Dowd. He pointed

out that Miss Dowd was a Health Act patient. On May 13th the County Secretary replied that the Co. Manager had placed Mr. Harvey's letter before the solicitor for the Co. Council who had advised that the information sought should not be furnished. The Chief Justice said that on May 22nd Mr. Harvey wrote to the Secretary of Kerry Health Authority alleg ing negligence and breach of duty on the part of their officers and servants, and to Mr. Galvin alleging negli gence on his part and on the part of others assisting at the operation. Mr. Calvin's solicitors sent Mr. Harvey a forth-right repudiation, while the Co. Council replied that they had forwarded Mr. Harvey's letter to their insurers. Mr. Harvey made a further attempt to obtain informa tion from the Health Authority; he asked for the names of the entire staff of the hospital, doctors, nurses and sisters who were there when Miss Dowd was a patient, and again the Co. Secretary, on May 27th, said that the Council's solicitor had advised against the furnishing of the information. The next step was the issuing of the summons. In subsequent correspondence the solicitors, on behalf of Surgeon Galvin wrote in May, 1965 that the delay in delivering the statement of claim was entirely unfair to their client and that they could not permit the action to hang indefinitely over his head. Chief Justice O Dalaigh said that while counsel foi Miss Dowd purported to explain how the long delay had arisen, he did not, nor indeed could anyone seek wholly to justify it. One could not, however, commend the attitude of the Health Authority towards the reasonable inquiries of Miss Dowd's solicitor. The court had not had argued before it the strict rights of the parties in the matter and could not therefore express an opinion on them. He could only say if the advice of the solicitor for the Co. Council was correct, a new peril was added for patients who had to undergo operative treatment. Continuing, the Chief Justice said that on November 22nd 1962, Miss Dowd's uncle, Dr. D. Dowd, of London, wrote to Mr. Galvin about the operation saying that he understood the paralysis of the right side also included the impairment of the sight of one eye. Dr. Dowd also stated that he had " endeavoured to ascertain the exact cause of the catastrophe." Mr. Galvin replied that he had operated for a swelling which he considered to be due to tuberculosis or idiopathetic chromic inflammatory glands. This was a carotid body tumour. Several hours after the operation Miss Dowd developed an embolus, or a thrombosis which resulted in a right-sided hemiplegia. Mr. Galvin added in the letter dated December 20, 1962, that the patient had so far made a very good recovery and now walked and spoke almost normally. Her right upper limb had not yet completely recovered but was showing definite signs of doing so. In regard to the granting of an extension of time, Mr. Galvin claimed that his defence would be seriously pre judiced because an Indian doctor who had assisted at the operat on ha ledft Ireland in 1963 and his where abouts were not known to him. The nurses who had been in attendance, and whose evidence would be material, were no longer attached to the hospital and he did not know their whereabouts. One of them, Nurse Miriam Slattery, was in America and he would have no means of compelling her attendance. After the institution of proceedings, his solicitors, in July, 1964, sought the services and advice of Professor 61