A [A Person With Disabilities] v Health Service Executive and Anor (Approved)

Factual and Procedural Background

The Plaintiff was born prematurely at The Hospital in The City on 12 January 2003 (born after c.24 weeks gestation). Prematurity produced multiple medical problems. The substantive litigation alleges negligent care by The Hospital and its staff, including (a) insertion and delayed removal of an intraline in the left leg leading to ischemia and later partial amputation of the left foot, (b) alleged neonatal infections and sepsis, (c) allegations of resultant neurodevelopmental disorders (an autism spectrum condition claim was withdrawn), (d) psychological injury (anxiety and depressive disorder), and (e) developmental delay and related life impacts. A concern was raised about possible alterations or duplications in nursing notes.

Previously, Judge Hyland (29 November 2024) struck out all claims except the limb/foot injury (the loss of toes and heel), allowing only the amputation-related claim to proceed. The present application was brought by the Defendants (Company A and The Hospital) challenging a more recent endorsement of claim and asserting it failed to conform to Judge Hyland's ruling. The Plaintiff (acting by his mother and next friend) relied on successive expert reports from Attorney Fogarasi, including a report dated 30 August 2025, seeking to reintroduce matters previously struck out.

Legal Issues Presented

1. Whether the most recent expert report (Attorney Fogarasi, 30 August 2025) constitutes genuinely new, credible evidence with an "air of reality" that would justify permitting amendment to reinstate claims previously struck out by Judge Hyland.
2. Which version of the endorsement of claim should be permitted, consistent with Judge Hyland's earlier judgment.

Arguments of the Parties

Plaintiff's Arguments (by Plaintiff's Mother)

• The Plaintiff relied on successive expert reports by Attorney Fogarasi; the 30 August 2025 report is said to contain new material (reassessment and literature references) that should undo parts of Judge Hyland's strike‑out decision.
• The recent endorsement of claim was amended by the Plaintiff's Mother and is said to reflect matters that should properly be before the Court following the new expert material.

Defendants' Arguments (Company A and The Hospital)

• The Defendants accept that the limb/foot claim may proceed but contend the recent endorsement of claim goes beyond that matter and attempts to reinsinuate psychological, developmental and other negligence claims previously struck out.
• The Defendants argue the 30 August 2025 report is largely a reassessment, contains no new factual particulars (no dates, times or identified negligent acts), and therefore does not meet the threshold to permit amendment.
• The Defendants sought exclusion of portions of the endorsement inconsistent with Judge Hyland's ruling; their green amendments narrowed the endorsement to the limb/foot claim.

Table of Precedents Cited

Court's Reasoning and Analysis

Judge Charleton proceeded on the basis that a judge at the same level may permit amendment where genuinely new and credible evidence emerges; the controlling legal test requires expert evidence that has an "air of reality" and meets the Greene threshold. He examined the 30 August 2025 report of Attorney Fogarasi in detail.

Key points of analysis from the report: (a) much of the report is reassessment of previously available material rather than new factual material; (b) the report contains generalized statements and references to studies linking neonatal sepsis and later autism but provides no particularised factual allegations (no specific dates, times, identifiable acts or personnel) demonstrating negligence causally connected to the excluded claims; (c) some statements about ventilation practice and hygiene were generic and lacked particulars; (d) the foot/limb injury material remained supported and was properly retained.

On that basis Judge Charleton concluded the 30 August 2025 report did not constitute genuinely new evidence with an air of reality sufficient to displace Judge Hyland's earlier ruling. He therefore limited the proceedings to the limb/foot amputation claim and adjusted the endorsement of claim to conform with that limitation, accepting most of the Defendants' narrowing amendments but preserving paragraphs that related directly to post‑birth management of the limb injury and its sequelae.

Holding and Implications

The court held that only the claim relating to the loss of the left forefoot, heel and toes (the limb/foot injury) may proceed; all other allegations (hypoxia as a basis for developmental delay/autism, broader developmental delay claims, and generalized psychological claims unconnected to the limb injury) remain struck out.

Implications: The endorsement of claim must be limited to the limb/foot injury and its ordinary sequelae; amendments seeking to revive previously struck‑out claims require genuinely new, particularised expert evidence with an air of reality. The decision does not purport to create wider precedent beyond applying established principles (Greene); costs of this pre‑trial motion were ordered as costs in the cause. The court noted an appeal remains open.