Lawyers' delay ends medical case

Six and a half years of inaction was "inordinate and inexcusable"

News, 30 May 2008

A judge has dismissed a woman's action for alleged negligence in treating a rare vaginal condition because of her lawyers' "inordinate and inexcusable" delay in pursuing it.

Michelle Hepburn complained that two doctors at the Royal Alexandria Hospital, Paisley had given her inappropriate treatment in 1994 and 1995. Her action was raised in 1998, within the three year time limit, but after it was sisted (put on hold) pending further investigations, effectively nothing happened between May 1998 and November 2004, when she instructed new solicitors.

After that, proper investigations were made but the pursuer proposed extensive amendments to her case. The hospital argued that although they had carried out some investigations, it was unfair for them now to have to meet the different allegations - and one of the doctors involved had died suddenly in 2002.

Lady Dorrian in the Court of Session agreed that the six year delay, "at what on any view is a fairly critical period in an action such as this", met the test in the recent case of Tonner, which affirmed the court's power to dismiss an action even though raised within the time limit, in the case of inexcusable delay.

"It is highly significant in my view that what [the defenders] were investigating is in many material respects quite different from what is now alleged", she said; and unfair to expect even the surviving doctor to remember the case.

Lady Dorrian's decision can be read at http://www.scotcourts.gov.uk/opinions/2008CSOH81.html .