Friday 24 November 2017

Widower's damages claim over cancer cannot be pursued, Court of Appeal rules

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A WIDOWER cannot pursue his legal action seeking damages for alleged wrongful death over a hospital's five month delay before acting on scan results showing his late wife had cancerous lesions in her liver, the Court of Appeal has ruled.

Dolores Hewitt, Kentstown, Navan, Co Meath,  had made a full recovery from breast cancer for which she was treated in 2001 at Our Lady’s Hospital, Navan, Mr Justice Gerard Hogan noted.

She was required to attend afterwards for review and an ultrasound scan of February 2007 had shown two lesions in her liver.

Her husband Joseph claimed, due to inadvertence on the hospital’s part, no action was taken on that scan report until a chance meeting with his wife’s surgeon five months later led to further scans which revealed further lesions in her liver.

Mrs Hewitt was then treated for that secondary cancer but eventually died from cancer in June 2010.

Arising from her death, her husband initiated proceedings against the HSE in January 2012 seeking damages for alleged wrongful death under Section 48 of the Civil Liability Act 1961.

In a pre-trial application, the HSE argued any claim for negligence which might have been brought by Mrs Hewitt in January 2012, had she been alive, would be statute barred (not brought within the applicable two year time limit) so her husband’s case, it argued, must also be statute barred.

After the High Court found against the HSE, it appealed.

Giving the three judge appeal court’s judgment, Judge Hogan said the case raised a "novel and difficult" point of statutory interpretation of considerable importance.

Mrs Hewitt had two years from July 2007, when she discovered the alleged failure to act on the earlies scan results, to sue but did not do so, he said. Had she sued within that period, her husband could, under Section 7 of the 1961 Act, have continued that case after her death.

While agreeing with the High Court Section 48 allows for a separate cause of action, he said the wording of Section 48 clearly links recovery of damages to the entitlement of a deceased, but for their death, to have sued in their own right.

Section 48 provides such an action may be maintained by a personal representative of a deceased only if the deceased had been entitled to "maintain the action and recover damages thereof", he noted.

The question was whether Mrs Hewitt, as of the date of her death in Jue 2010, could have "maintained" a case for negligence and recover damages. That question could only be answered in the negative as any such action would long have been statute barred by that date, the judge held.

On that basis, he must "reluctantly" disagree with the High Court's conclusion on this difficult point of statutory interpretation.

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