In June 2011, Mr Justice Hedigan handed down judgment in an interesting case, Carroll v The Mater Hospital, where the question of the Injuries Board (previously PIAB) and its application to claims arising in a medical treatment context was considered. The upshot of this Judgment is to serve as a reminder that claims arising from the provision of medical treatment should not be submitted to the Injuries Board and solicitors acting for Plaintiffs should not take any comfort that the “freezing provision” in Section 50 of the PIAB Act, 2003 (“2003 Act) will apply to such claims if they are submitted to the Injuries Board.

The plaintiff sustained injuries in a bathroom fall while an inpatient in the Mater Hospital.   There was no allegation of a slip or trip; instead the plaintiff pleaded that, having regard to her medical condition and the medication which she had been prescribed, the hospital was negligent in failing to advise her to ensure that she was accompanied when using the bathroom. Acting for the Mater Hospital, we sought the trial of a preliminary issue to determine whether the plaintiff's claim was statute-barred because proceedings had not issued within the two year statutory limit.

The trial of the preliminary issue came before Mr. Justice Hedigan in May 2011.  Mason Hayes & Curran argued that the plaintiff's claim was statute-barred on two grounds:

  1. The plaintiff’s claim was covered by the exclusion provided in Section 3(d) of the 2003 Act and thus, it was not one to which the PIAB process applied – the plaintiff therefore should have issued proceedings within the two year statutory period and;
  2. Even if the plaintiff managed to get over the above hurdle on the basis that her claim was not a medical negligence claim, her claim was still statute-barred as she had not issued her proceedings within the time limits that apply to PIAB claims.

The plaintiff argued that this was not a medical negligence claim and that it was not one to which Section 3(d) of the 2003 Act applied.  Specifically, the plaintiff argued that the main issue in her claim involved ‘the provision of nursing care’ and that this could be differentiated from the ‘provision of medical treatment or any health service’ as set out in Section 3(d) of the 2003 Act.  

Mr Justice Hedigan held that the plaintiff's claim was one which arose from a mix of nursing care and medical treatment and that, as such, it was covered by the exclusion provided in S 3(d) and therefore was one to which the 2003 Act did not apply.  Mr Justice Hedigan also stated in his judgment that, while nursing care and medical care can be differentiated, they are linked, and either might fall under the rubric of medical care.  The Plaintiff’s claim was thus statute barred and the Court did not have to consider the second ground of the defendant’s application.