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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
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