A legal action by elderly woman who died midway through an appeal against the dismissal of her claim for damages over an eye operation cannot survive her death, the Supreme Court has ruled.
Bridget Doyle, Mountbolus, Co Offaly, sued the Eye and Ear Hospital in Dublin for alleged negligence over cataract surgery which was not successful.
The High Court dismissed her claim that the hospital failed to obtain informed consent from her without there first being a discussion of the prospects of the success of the surgery.
It was claimed she would not have gone ahead in the knowledge of the risks associated with it.
The High Court ruled the hospital met the minimum requirements for disclosure of information to patients in elective surgery and her claim was dismissed on December 20th last.
During the case, the High Court had allowed the action to be amended so that Mrs Doyle, due to incapacity, could sue through her son Edward.
An appeal was lodged but, after it was part heard, she died on her 83rd birthday last July.
The Supreme Court ruled yesterday there was no remedy in law whereby damages could be recovered on the basis that the action survived because of the High Court decision which was given when she was alive.
Ms Justice Mary Laffoy, on behalf of the three-judge court, noted the High Court judge said Mrs Doyle was operated on in February 2010 after an uncontrolled pseudomonas infection developed in her left eye but the surgery was not successful.
She was subsequently fitted with a prosthesis which had “devastating consequences” for her and she was very often depressed as a result, her son Edward told the court.
Further complications arose and she had to undergo another procedure in 2012.
Ms Justice Laffoy said the appeal had asked the Supreme Court to set aside the High Court decision and order a new trial on all issues or, alternatively, assess damages itself.
The appeal was given priority hearing as Mrs Doyle was terminally ill. It began on June 3rd and was due to resume on July 31st, but by then she had died for reasons unrelated to her legal action.
Edward was the executor of his mother’s will and it was argued her claim for damages survived her death but the hospital disputed this.
Ms Justice Laffoy said the Civil Liability Act 1961 states that while an action survives for the benefit of the estate, it shall not include exemplary damages or damages for pain, suffering, or loss and diminution of expectation of life or happiness.
This was also not one of the exceptions contained in that law and the issue of whether the death was caused by the operation did not apply in this case.
The judge rejected arguments that what was before the Supreme Court was not the original cause of the legal action but the High Court decision.
It was difficult to see any logic in that proposition particularly in the context of the 1961 Act stating a claim “damages for pain etc” shall not survive the death of the plaintiff, she said.
It cannot be the case that the original cause of action had merged in the judgment of the High Court.
If Mrs Doyle had survived, any decision on the appeal could only have been determined on the basis of the original cause of action, she said.
The judge said the issue of costs of the case will be re-listed for hearing.
ends