The plaintiff sued a number of doctors and the hospital operator for negligence in relation to injuries she allegedly suffered in respect of medical procedures she underwent in November 2010 and September 2011. In these proceedings, the defendants brought various interlocutory applications against the plaintiff seeking summary judgment or for some of her pleadings to be struck out.

Background

The allegations in relation to the events of November 2010 concerned a hysterectomy and were made against Dr Mutton and Dr Bates. The allegation about the surgical procedures of September 2010 was in relation to the insertion of a sling, anterior mesh, posterior mesh and rectal mesh and were against Dr Gallagher. The first defendant hospital was being sued on the basis of vicarious liability.

The plaintiff claimed that there was:

  • failure to inform and seek her consent before the operations were carried out;
  • failure to warn of the complications that might result from the operations;
  • failure to exercise reasonable care and skill;
  • carrying out of operation by a doctor who was not qualified or competent to perform it; and
  • vicarious liability of the hospital for tortious acts of the doctors.

The plaintiff alleges that as a result of the procedures, she was unable to bear children and required further procedures. She also claimed that she had suffered mental health issues, had ongoing pain and required medication.

The hospital and Dr Bates sought summary judgment on the basis that the 3-year limitation period for such proceedings had been exceeded. The medical procedures performed by Dr Bates took place on 4 July 2014 and proceedings were not commenced until 4 July 2014. The plaintiff on the other hand, claimed that the first time she became aware that her uterus was removed was on 7 July 2011.

The hospital also claimed that it was not vicariously responsible for the actions of any of the doctors because they were not employees of the hospital, rather they were independent contractors.

Dr Mutton and Dr Gallagher sought to strike out some of the plaintiff’s pleadings that were considered embarrassing and others that they alleged were not material to the proceedings.

Findings

Decisions about limitation periods should be made in interlocutory proceedings only where the facts relevant to the question of whether the limitation period has been exceeded, are uncontested. This was not such a case and should proceed to a substantive hearing.

The issue of vicarious responsibility should not be determined in a summary proceeding because the totality of the evidence to determine whether the hospital was the employer of the doctors was not before the court.

Some of the plaintiff’s pleadings were struck out because they did not disclose material facts relevant to the allegation of negligence. For example, there was a reference to a journal article that stated that a surgeon who does not obtain consent from a patient commits assault. This was struck out. Other pleadings were struck out because they were vexatious and/or embarrassing. For example, the plaintiff stating that the defendants ‘need to be prosecuted for all they have done’ to her was struck out.

No cause of action was struck out, but the plaintiff was required to amend her Statement of Claim to comply with rules of civil procedure. She was also required to file an expert medical report to support the allegations against each of the defendants.