Farrell v Ryan

• Jurisdiction: Ireland
• Judge: MR JUSTICE MICHAEL,Ms. Justice Irvine
• Judgment Date: 14 October 2016
• Neutral Citation: [2016] IECA 281
• Docket Number: [2015 No. 311]
• Court: Court of Appeal (Ireland)
• Date: 14 October 2016

BETWEEN

LINDA FARRELL

PLAINTIFF/APPELLANT

AND

JOHN RYAN

DEFENDANT/RESPONDENT

[2016] IECA 281

[2015 No. 311]

THE COURT OF APPEAL

Negligence – Medical procedure – Credible evidence – Appellant seeking to make a claim for negligence – Whether the appellant had established that there was no justification for the performance of an antenatal symphysiotomy at the time it was performed

Facts: The appellant, Mrs Farrell, sought to make a claim for negligence against the Coombe Hospital. That claim concerned a procedure known as a symphysiotomy which was carried out on the appellant on 25th September, 1963, by the then Master of the hospital, Dr Stuart, some 12 days prior to the birth of her first child. On 1st May, 2015, the High Court (Cross J) rejected the appellant’s claim for negligence. The appellant appealed to the Court of Appeal against the judgment of the High Court, submitting that: 1) there was no credible evidence to support the trial judge’s conclusions that the plaintiff had clinical features or signs of disproportion such as would have justified a prophylactic symphysiotomy in 1963; 2) even if there were clinical signs to suggest disproportion, there was no credible evidence to support a conclusion that prophylactic symphysiotomy was a general and approved practice to be adopted in such circumstances i.e. in the case of a patient suffering from mild or moderate Cephalopelvic Disproportion; 3) even if the High Court judge was entitled on the evidence and as a matter of law to conclude that prophylactic symphysiotomy could be considered to have been a general and approved practice within the meaning of the principles in Dunne (an infant) v National Maternity Hospital [1989] IR 91, on the evidence before him he was mandated to conclude that the practice had inherent defects which ought to have been obvious to any person giving the matter due consideration. The respondent, Mr Ryan, submitted that: 1) there was credible evidence to support the findings of the trial judge that, in the circumstances as they related to Mrs Farrell, prophylactic symphysiotomy was medically justified; 2) there was credible evidence to support the conclusions of the trial judge that the carrying out of a prophylactic symphysiotomy on Mrs Farrell in 1963, having regard to the clinical findings, was in accordance with a general and approved practice among clinicians of equivalent experience to Dr Stuart; 3) there was more than sufficient evidence to support the trial judge’s conclusion that prophylactic symphysiotomy was not a procedure which at that time could have been considered inherently defective.

Held by Irvine J that by the standards of 1963, and in the very particular circumstances of Mrs Farrell’s case, it could not be said that there was not credible evidence to support the conclusion of the trial judge that she had failed to establish that the prophylactic symphysiotomy to which she was subjected could never, in any circumstances, have been justified. Irvine J was quite satisfied that the trial judge was entitled to conclude that a reasonable and respectable body of clinicians of like expertise to that enjoyed by Dr Stuart would have approved of the use of prophylactic symphysiotomy in the circumstances of her case in 1963, and that the practice was not one which, judged by the then prevailing standards, could be considered to have been inherently defective within the meaning of the Dunne principles.

Irvine J held that she would dismiss the appeal.

Appeal dismissed.

JUDGMENT of Ms. Justice Irvine delivered on 14th day of October 2016

1 This is the plaintiff's appeal against the judgment of the High Court (Cross J.) delivered on 1st May, 2015, and the consequential Order of the Court dated 19th May, 2015. There is also a cross-appeal by the defendant. In his judgment, the High Court Judge rejected the plaintiff's claim for negligence against the Coombe Hospital. That claim concerned a procedure known as a symphysiotomy which was carried out on the plaintiff on 25th September, 1963, by the then Master of the hospital, Dr. James Stuart, some 12 days prior to the birth of her first child, Vanessa.

2 Core to this appeal is whether the trial judge erred in law or in fact in concluding that the plaintiff had failed to establish that there was ‘no justification whatever, in any circumstances, for the performance of an antenatal symphysiotomy on the plaintiff at the time it was performed’.

3 The reason why the judge formulated his decision in the aforementioned terms was as an indirect result of a plea raised by the defendant at para. 2 of his defence. That plea was to the effect that the plaintiff's claim should be dismissed by reason of her inordinate and inexcusable delay in the manner in which she had pursued her proceedings. In the alternative, the defendant maintained that the passage of time between the events, the subject matter of the proceedings and the trial warranted the dismissal of the claim in circumstances where there was a real and serious risk that the defendant could not be afforded a fair trial. In particular, the defendant relied upon the fact that those responsible for the plaintiff's antenatal assessment and clinical management were, as a result of the passage of time, no longer in a position to give evidence.

4 By letter dated 10th October, 2014, the plaintiff's solicitors, in an effort to stave off the risk that her action might be dismissed by reason of delay and resulting prejudice, wrote to the defendant advising that the case was being re-formulated and would proceed on one issue only, namely:-

‘That there was no justification whatever, in any circumstances, for the performance of an antenatal symphysiotomy on the plaintiff at the time it was performed.’

5 The aforementioned wording has its origins in the judgment of the Supreme Court in another symphysiotomy case, Kearney v. McQuillan [2010] 3 I.R. 576, that being a case in which a symphysiotomy had been carried on the mother, Mrs. Kearney, by her obstetrician, Dr. Connolly, at our Lady of Lourdes Hospital Drogheda, following the delivery of her baby by Caesarean section. In Kearney, the defendants, being the hospital and relevant Health Board, sought an order preventing the plaintiff's claim from proceeding by reason of inordinate and inexcusable delay. They claimed insurmountable prejudice due to the unavailability of certain witnesses. In the High Court, Dunne J. acceded to that application.

6 In the course of the plaintiff's appeal against that decision, Hardiman J. expressed himself satisfied that in the event of the claim being reformulated in a manner similar to that advised by the plaintiff's solicitors in the instant case, Mrs. Kearney's claim could be maintained without undue prejudice to the hospital. He was satisfied to accept Counsel's reformulation of the liability issue in the following terms namely:-

‘That there was no justification whatever, in any circumstances, for the performance of symphysiotomy on the plaintiff at the time it was performed and following delivery by Caesarean section.’

7 Hardiman J. considered that the claim so reformulated would avoid the prejudice that would otherwise be suffered by the defendants in defending the action as originally pleaded. As to how it might be defended, at para. 17 of his judgment, he noted as follows:-

‘It should be recorded that, in further discussions with the court, counsel for the plaintiff conceded that the case, reformulated as it was, would be defeated if the first defendant could establish any circumstances in which, in the circumstances prevailing in Ireland in the year 1969, and in the circumstances of this case, a symphysiotomy could have been justified by a consultant gynaecologist. In other words, the first defendant may, if the action is permitted to proceed, defeat the plaintiff's claim on a hypothetical basis and will not be itself defeated simply because its defence, by reason of the absence of Dr. Connolly and his consultant colleagues of the time, can only be hypothetical.’

8 He further acknowledged that the hospital would continue to have available to it the defence suggested by the second of the principles advanced by Finlay C.J. in Dunne (an infant) v. National Maternity Hospital [1989] I.R. 91 at 109, namely:–

‘If the allegation of negligence against a medical practitioner is based on proof that he deviated from a general and approved practice, that will not establish negligence unless it is also proved that the course he did take was one which no medical practitioner of like specialisation and skill would have followed had he been taking the ordinary care required for a person of his qualifications.’

9 Hardiman J. at para. 19 concluded his observations as to the effect of the reformulation with the following statement:-

‘It appears to the court that, by reason of the reformulation of the case the first defendant is relieved of the necessity to establish specific indications, perceived by Dr. Connolly, and justifying the carrying out of the symphysiotomy. It is enabled to defend the case by establishing in credible evidence some realistic reason for the procedure in the circumstances actually prevailing in relation to the plaintiff in 1969. The most immediately relevant of these circumstances would appear to me that, prior to the symphysiotomy, her baby had been delivered by caesarean section.’

10 Thus, when this action proceeded in the High Court on the claim as reformulated, three issues required determination:–

(i) Whether the plaintiff's claim should be dismissed by reason of delay and prejudice notwithstanding its reformulation in the terms earlier advised.

(ii) Whether the claim was statute barred.

(iii) Liability based upon the claim as reformulated.

11 The plaintiff's appeal is in effect confined to the third of these issues...