Kearney v McQuillan
| Jurisdiction | Ireland |
| Judge | Mr. Justice Ryan |
| Judgment Date | 23 March 2012 |
| Neutral Citation | [2012] IEHC 127 |
| Court | High Court |
| Date | 23 March 2012 |
[2012] IEHC 127
THE HIGH COURT
BETWEEN
AND
KEARNEY v MCQUILLAN & NORTH EASTERN HEALTH BOARD UNREP DUNNE 31.5.2006 2006/31/6601 2006 IEHC 186
KERR & MOIR MUNROE KERRS OPERATIVE OBSTETRICS 7ED 1964 CHAP 24
DUNNE (AN INFANT) v NATIONAL MATERNITY HOSPITAL & JACKSON 1989 IR 91 1989 ILRM 735 1989/1/165
NEGLIGENCE
Medical negligence
Emergency caesarean section - Symphysiotomy - Sexual dysfunction and reproductive loss - Failure to bond with baby - Depression - Psychiatric injury - Back problems - Damages - Date of knowledge - Balance between legal rights and protections in interest of justice - Whether wholly unnecessary and unjustified operation - Whether medical justification for symphysiotomy - Whether evidence and diagnosis of disproportion - Whether general and approved practice followed - Dunne v National Maternity Hospital [1989] IR 91 considered - Damages awarded (2004/6652P - Ryan J - 23/3/2012) [2012] IEHC 12
Kearney v McQuillan
Facts: During childbirth, a symphysiotomy had been performed on the plaintiff in 1969 which had had profound medical effects upon the plaintiff. The question arose as to time delay and whether the plaintiff could claim damages for injuries suffered several decades ago, when she did not know that a wrong had occurred to her. A Supreme Court had held in previous related proceedings seeking to strike out the claim by reason of inordinate delay, that her claim could be defeated if the defendant could establish circumstances prevailing in 1969 justifying the carrying out of the symphysiotomy. The action had proceeded against the first defendant. The plaintiff submitted that contemporary medical records and hospital reports did not provide any evidence of the medical justification for the symphysiotomy on the plaintiff.
Held by Ryan J. that the actions of the doctor had altered the plaintiff”s life irrevocably and that the operation had been wholly unjustified. The plaintiff had to succeed. She was a victim of grave medical malpractice and had suffered excruciating pain. General damages in the past would be awarded in the sum of €300,000 and in the future in the sum of €150,000
1. The plaintiff is a married lady who is now aged 60 years and who has one grown-up child, a son who was born in 1969 at Our Lady of Lourdes Hospital, Drogheda. The first defendant is the nominee of the owners and occupiers of the hospital at the relevant time. The case against the second defendant had been struck out before the hearing.
2. The plaintiff became pregnant in early 1969 and in September of that year her general practitioner referred her for ante-natal care to Our Lady of Lourdes Hospital, Drogheda, She attended there on the 18 th September, 1969, and on a number of subsequent occasions before being admitted to the hospital on Thursday afternoon 16 th October. The plaintiff was aged 18 years at the time.
3. Labour was induced by rupture of the membranes at 3 am on Friday the 17 th October. However, the plaintiff did not progress to a natural, vaginal delivery. There were two problems: the baby was in a position in the womb that made natural delivery impossible and labour was not progressing. The baby's head was flexed backwards and there was inadequate cervical activity. If there had been normal progress of labour the contractions of the cervix might have altered the baby's position to one that was conducive to normal delivery. In the result, the consultant obstetrician Dr. Connolly decided to deliver the baby by caesarean section.
4. The baby was born at 12:10 am on the 19 th October. Shortly after birth he had some breathing difficulties and was transferred to the special care unit. He eventually made a full recovery.
5. Dr. Connolly's note of the operation gave brief details. They included the fact that it was an emergency lower segment caesarean section "for p.o.p. and failure to progress". POP means persistent occiput posterior which described the baby's presentation in the womb.
6. At the end of his short note the doctor wrote: "Symphysiotomy performed before closure." Symphysiotomy is the surgical enlargement of the pelvis by dividing the fibro-cartilaginous joint between the pubic bones. There was of course no need to do a symphysiotomy because the plaintiff's baby had been successfully delivered using an appropriate treatment option. This controversial procedure is the central issue in the case.
7. Another piece of information about the plaintiff's treatment is contained in the hospital's Clinical Report for 1968/1969 which, using a number code for the patient, recorded the reason for Ms Kearney's caesarean section operation as: "9031 - incoordinate uterine action. Remarks -none."
8. On the 28 th October, the plaintiff had x-ray pelvimetry which showed normal pelvic measurements.
9. The plaintiff's evidence was that she was in excruciating pain after the operation. She had a bandage around her abdomen and hips. She did not get out of bed until the sixth day after giving birth when her husband brought her in a wheelchair to see her baby. The sutures were removed on the 27 th October and she was discharged home on the 29 th October.
10. Mr Roger Clements, Consultant Obstetrician, summarised in his report the plaintiff's account of subsequent events. For the first three months she spent most of the time in bed. Her mother-in-law helped with the baby and the plaintiff had little interest in him. Movements of her pelvis, particularly opening her legs, were painful. The pain spread all over her body. It took a year before she was fully mobile and able to return to work. She did not bond with her baby. She did not attempt sexual intercourse for the first year and after that only with great difficulty. She suffered severe sexual dysfunction and reproductive loss. Her enjoyment of sex disappeared. From about 1974 until 1999 she had sex very infrequently, once every two or three months. Since 1999 she has had no sexual intercourse. Over the years she sought many forms of treatment for back pain, difficulty in moving and lower abdominal pain. She suffered severe locomotor problems. She was depressed.
11. The plaintiff said that she did not know that he had had a symphysiotomy until she heard a radio programme in 2002 when women were describing their experiences following such operations. She looked for her medical records from the hospital and discovered that that is what had happened to her. The discovery that she had undergone a symphysiotomy at the time of giving birth to her son in 1969 resulted in further psychological trauma and depression.
12. The plaintiff sued. She claimed damages for what she alleged was a wholly unnecessary and unjustified operation that had disastrous consequence for her health and enjoyment of life. But the case was old. Potential witnesses, including the doctor, were dead or missing. The first defendant sought in a preliminary motion an order striking out the claim by reason of inordinate inexcusable delay in instituting proceedings. It was argued that the first defendant was prejudiced. The High Court [2006] IEHC 186 granted the relief sought.
13. The plaintiff appealed to the Supreme Court. On appeal, her counsel reformulated her claim and contended that the principal issue was that there was no justification whatever, in any circumstances, for the performance of a symphysiotomy on the plaintiff at the time it was performed and following successful delivery of her baby by caesarean section. The Court observed:
"This reformulation of the case was done in order to meet what would otherwise be a very strong claim on the part of the first defendant to have the action dismissed against it on the grounds of prejudice arising from prejudice arising from delay. While the court does not have to decide the question of whether the action would indeed have been dismissed on that basis had it proceeded as originally formulated, we have no hesitation in saying that this was a very real risk quite justifying the advice given to the plaintiff as a result of which the case was reformulated as above."
14. The Supreme Court allowed the appeal, holding (1) that the reformulation of the claim removed the prejudice to the defendant and (2) that the plaintiff could be defeated if the first defendant could establish any circumstances prevailing in 1969 which would have justified carrying out a symphsiotomy. On a hypothetical basis, the first defendant could defend the case by establishing by means of credible evidence some realistic reason for the carrying out of the procedure in the actual circumstances which prevailed in relation to the plaintiff in 1969. In light of the reformulation of the case, the Court held that no prejudice affected the first defendant by reason of the death of Dr. Connolly and the other doctors mentioned. As Hardiman J. said in delivering the judgment of the Court:
"In particular, the court is satisfied that the first defendant will continue to have available to it the defence suggested by the second of the principles laid down by Finlay C.J., in Dunne (an infant) v. National Maternity Hospital [1989] I.R. 91, at p. 109. This is as follows:-"
'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 from a person of his qualifications.'
"It appears to the court that, by reason of the reformulation of...
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