Clinical Negligence Law 2025: A Year in Review

Clinical Negligence: Key judgments of 2025

Below we have highlighted a number of key decisions covering areas such as; the importance of medical records in clinical negligence actions, the extent of delay sufficient for proceedings to be dismissed, split trials and preliminary issues, differential costs orders and the Dunne principles.

Discovery and Medical Records

A factual dispute arose within the High Court claim of Tynan v Bon Secours Health System[1] which related to the alleged failure by the Defendants to provide adequate monitoring, anaesthesia and pain management during a cardiac procedure. The Plaintiff alleged that she reported pain and requested that the procedure be stopped. The Defendants denied that the Plaintiff communicated any significant or ongoing distress during the procedure, and no evidence of such complaints were noted in the contemporaneous medical and nursing records. The High Court dismissed the Plaintiff’s claim as her version of events did not align with what was noted in the records. This decision highlights that medical records are critical when advising on and meeting a claim for clinical negligence.

In relation to discovery, the Court of Appeal in O’Regan v Lanigan[2] found that the discovery sought must be necessary and the request must set out the reasons. The Plaintiff requested discovery of documents to investigate whether the hospital had vicarious responsibility for the actions of the treating consultant urologist. The Plaintiff’s request included all documents relating to supervision of staff, clinical governance, standards of conduct, disciplinary procedures, pay, and working hours. The Court considered that no explanation or evidence was provided as to why the discovery sought was required, noting also that the hospital did not employ the urologist in this case. The Plaintiff’s request for discovery was considered excessive, not focussed and was ultimately refused.

Delay

In Kirwan v Connors & Ors[3] the Supreme Court considered the Primor test[4], which required a Defendant to show that any delay by the Plaintiff to progress their claim, was inordinate and inexcusable. Kirwan provides a clear, structured scale for assessing the merits of dismissal in accordance with the extent of the delay, as follows;

• Less than 2 years – dismissal only for abuse of process or prejudice to the Defendant;
• 2+ years – dismissal considered and if not granted, case management directions can be imposed which, if they are complied with, can led to dismissal;
• 4+ years – the claim should be dismissed, unless the Plaintiff can show compelling reasons that the case ought to proceed; and
• 5 + years – Courts have generous power to dismiss a claim, unless the Plaintiff can demonstrate there is a pressing exigency of justice that requires the case to proceed to trial.

The High Court considered the issue of delay in Judge v HSE[5], a claim arising from the alleged avoidable amputation (from below the Plaintiff’s knee). The point in issue, was whether the Defendant’s third-party application, was served “as soon as is reasonably possible.”[6] The following points were considered by the Court;

• High Court proceedings were issued on 28^th May 2020 (pertaining to the alleged negligent treatment provided in 2018-2019);
• Three third parties (one treating consultant, one private clinic and one private hospital attended by the Plaintiff) were identified within the particulars of negligence, injury and loss served on 29^th October 2021 and within the Plaintiff’s Replies dated 25^th April 2022;
• The Defendant obtained critical expert evidence in respect of the treatment of the third parties on 23^rd June 2023 however, sought to secure a second expert opinion which was received in October 2023;
• The Defendant issued a Motion on 24^th January 2024 to join the third parties to the proceedings;
• Ms Justice Egan made the Order, granting leave to serve a third-party notice, on 26^th February 2024, which was subsequently served on 20^th March 2024;
• Motion to set aside the third-party application (on the grounds of delay) was made promptly, thereafter.

The Defendant argued that the delays with serving the third-party notice were justified due to the complexity of the case and due to the requirement of a further expert report (which was received in October 2023). Notwithstanding this, the High Court granted the application to set aside the third-party notice, noting that the basis for the third-party application had been established within the expert report received in June 2023 and therefore, the necessity of seeking further expert opinion was unclear. The Court found that the third-party notice was not served as soon as reasonably possible and the application to set aside was granted.

Split Trials and Preliminary Hearings

The Court considered the Defendant’s application for a modular trial within Thompson (A Minor) v HSE[7], which concerned an alleged birth injury. The Defendant sought a modular trial to allow two factual issues to be resolved before the remaining issues were litigated. The Court granted the Defendant’s application as the factual points in issue were considered capable of being determined independently, without causing prejudice to the Plaintiff and providing time and cost savings.

In the case of Cahill (A Minor) v HSE[8], which concerned an alleged delayed diagnosis of intracranial pathology, the Plaintiff sought a preliminary hearing to consider whether the personal injury discount rates used to calculate future losses, should include taxes and duties payable on income earned from a damages awarded. The Court refused this application for the following key reasons;

• The parties did not agree on what, if any, evidence was required to determine the point in issue. The Court did not consider it was possible to resolve a legal question in the absence of an accepted factual matrix;
• The resolution of the preliminary issue would not have a substantial impact on this case, noting that a full defence had been served in respect of liability and causation and these issues would remain to be determined;
• No savings in costs or time had been identified and the separation of this issue could in fact lengthen the case, thereby, increasing costs; and
• Given that the legal question was related to damages, the determining of this issue would not bring the case to a conclusion and in any event, this issue may never actually arise.

This judgment reiterates that the issues to be determined at preliminary hearings, ought to encourage the efficiency of litigation and to ultimately save time and costs.

Differential Costs Orders

The Court of Appeal in Milmoe v Chatzis & Anor[9], which concerned a claim for negligence pertaining to post-operative care following breast augmentation surgery, refused to grant a Differential Costs Order, despite the damages award falling within the remit of the Circuit Court jurisdiction. The Court of Appeal noted that the Defendant failed to issue a letter to the Plaintiff (pursuant to section 17 of the Courts Act 1981), to threaten an application to remit the proceedings or to engage with the Plaintiff regarding the issue of remittal, before trial. The Court of Appeal highlights that Differential Costs Orders are discretionary, not automatic and there is an onus on the Defendant to issue a warning letter.

Dunne Principles

The High Court in Perez v Coombe[10] reaffirmed the Dunne principles[11] which provide that the test for establishing clinical negligence is whether a medical practitioner is guilty of a failure that no medical practitioner of equal specialist or general status and skill would be guilty of, if acting with ordinary care. The High Court dismissed the Plaintiff’s claim (which concerned alleged delayed diagnosis and treatment of a post-partum haemorrhage) as the minor deviations from standard practice and the deficiencies in record keeping, were insufficient to constitute a claim for clinical negligence, pursuant to the Dunne principles.

If you would like any further information or advice on the information mentioned within this article, please contact Sinéad Keavey, Jacqueline McAleese, Kathleen Byrne or Deirdre Ryan from our Healthcare team.

*This information is for guidance purposes only and does not constitute, nor should be regarded as, a substitute for taking legal advice that is tailored to your circumstances.

[1] Tynan v Bon Secours Health System Company Limited by Guarantee & Anor (2025) IEHC 81

[2] O’REGAN V LANIGAN [2025] IECA 151

[3] KIRWAN V CONNORS [2025] IESC 21

[4] Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459

[5] JUDGE V HSE [2025] IEHC 438

[6] s27(1)(b) Civil Liability Act 1961 and Order 16 Rule 1(3) Rules of the Superior Courts

[7] THOMPSON (A MINOR) V HSE [2025] IEHC 156

[8] CAHILL (A MINOR) V HSE [2025] IEHC 624

[9] Milmoe v Chatzis & Anor [2025] IECA 149

[10] Perez v Coombe Women and Infants University Hospital and the Health Service Executive 2025 (IEHC 396)

[11] Dunne v National Maternity Hospital [1989] IR 91.