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Judge Penalises Plaintiff for Unfounded Claims Against Surgeon

The judge in a medical negligence case has penalised the plaintiff for making unfounded medical negligence claims against a surgeon, reducing the amount awarded to her in costs.

In June this year, the High Court in Dublin heard the case of Madeline Wright v. the Health Service Executive and the Mater Misericordiae Hospital. The judge found that the HSE had been negligent in the treatment of Madeline´s spine injury. However, the original claim for medical negligence had cited three specific incidents in which Madeline considered her treatment negligent. One of the allegations had been made against her orthopaedic surgeon, Mr Keith Synott. After hearing the evidence presented against the surgeon, the judge found the case against him unfounded and dismissed the claim.

Normally, the costs in a medical negligence claim are usually awarded to the successful party. As the case against the surgeon was dismissed, Ms Justice Mary Irvine penalised Madeline for making unfounded claims. She was only awarded her 65% costs against the expenses she and her legal team had accrued in the presentation and resolution of her claim.

In her departure from the principal of “costs follow the event”, Ms Justice Mary Irvine said “I am satisfied that regardless of the fact that the plaintiff only succeeded on the last of what I consider to have been four separate legs of her claim that she must nonetheless be deemed to be the overall winner of proceedings in which the defendants denied any liability and in the course of which she duly established a right to compensation she would not otherwise have been able to recover”.

The judge added that the proceedings were of a “complex variety”. The duration of the proceedings was significantly extended due to the allegations of negligence against the surgeon which were not substantiated, and thus an costly investigation had to be launched into the matter. This greatly increased the costs of the medical negligence claim to both parties.
Ms Justice Mary Irvine felt that only 20% of the evidence presented in court related to the HSE negligence for which Madeline was ultimately compensated, and she said that she was tempted to make a costs order in favour of the HSE for successfully defending many of the unsubstantiated allegations.

“However”, the judge concluded “as this practice has not to date been customary in this type of litigation, I have decided against such an approach in the present case and will do no more than reflect in a proportionate way the plaintiff’s failure to succeed on this issue when reducing the level of costs to which she is entitled”.

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