Kearney v McQuillan & North Eastern Health Board (No 2)
 IESC 43
THE SUPREME COURT
147/2012 - Denham Hardiman Fennelly Clarke MacMenamin - Supreme - 11/7/2012 - 2012 20 5783 2012 IESC 43
KEARNEY v MCQUILLAN & NORTH EASTERN HEALTH BOARD2010/25/6094 2010 IESC 20
DUNNE (AN INFANT) v NATIONAL MATERNITY HOSPITAL & JACKSON1989/1/165
N (M) v M (S)
SINNOTT v QUINNSWORTH LTD & ORS1984/5/1719
YUN v MOTOR INSURERS BUREAU OF IRELAND (MIBI) & TAO UNREP QUIRKE 17.7.2009 2009/58/14881 2009 IEHC 318
Tort – Negligence – Professional negligence –Surgical procedure – Plaintiff alleging negligence on part of defendant – Symphyisotomy carried out on plaintiff
This appeal is bought against the judgment and order of The High Court, (Ryan J.), delivered on 23rd day of March 2012. The proceedings arise from a symphysiotomy procedure, which was carried out on the plaintiff (Mrs. Kearney) on the 17th October 1969, when she was just 18 of age, and when her first child, Martin Kearney, had just been delivered by caesarean section. Mrs. Kearney had come under the care of Dr. Connolly, a consultant at Our Lady of Lourdes Hospital Drogheda Co. Louth. The first defendant is the nominated representative of the hospital for this litigation. The case against the second named defendant was struck out prior to the hearing. The plaintiff's case is that, through Dr. Connolly, the hospital was negligent in assessing the need for the symphysiotomy and that the operation was entirely unjustified. The plaintiff succeeded in the claim at first instance. The decision of the High Court was to award the plaintiff a total sum in general damages of €450,000. Both liability and quantum are in issue in the appeal. From the outset, a primary difficulty in this case was the lapse of time which occurred between the procedure itself and the issuing of proceedings much later, on 11th May 2004. The plaintiff's case was that she was unaware of all this until the year 2002. In that year, she heard a radio broadcast on the subject, and realised that Dr. Connolly must have carried out a symphysiotomy on her, giving rise to the symptoms described in more detail later in this judgment. I would emphasise that the decision in this appeal is based on the evidence adduced in this particular decision.
By notice of motion dated 23rd June 2005, the first defendant sought an order preventing Mrs. Kearney's claim from proceeding further by reason of inordinate and inexcusable delay. The defendant claimed insurmountable prejudice through the unavailability of witnesses. On the basis of the pleadings, the evidence, and the submissions made in the High Court, the defendant succeeded in that application and the case against the plaintiff was dismissed. An appeal against that decision was heard by this court, (Hardiman, Fennelly, and Macken JJ.) on 25th March 2010. The defendants continued to assert prejudice as a bar to the claim proceeding. They again pointed out that this arose mainly through potential witnesses who could not testify, especially Dr. Connolly himself, who died in the year 2000. But it emerged during the appeal that the claim could be reformulated; that the true issue to be determined was as to the justifiability of the procedure even on the basis of the standards prevailing in obstetrics at the time of the operation in 1969. In the appeal against the High Court order dismissing the claim for inordinate delay, counsel for the plaintiff Mr. Turlough O'Donnell S.C. relied on a medical report of Mr. Roger Clements an English gynaecologist, for this reformulation. Mr. Clements' view was that, the procedure was unjustified and improper, even having regard to the conditions, circumstances, and standards prevailing in Ireland in 1969. He was supported by standard medical textbooks which condemned the procedure outright.
In the appeal Mr. O'Donnell S.C. conceded that the claim would be defeated if the defendant could establishany circumstances in which, in the circumstances prevailing in 1969, and in the circumstances of this particular case, a symphysiotomy could have been justified by a consultant gynaecologist. This would allow the defendant to defeat the plaintiff's claim if the procedure could have been justified for the reason just outlined. The defendant would not be prejudiced simply because Dr. Connolly and his colleagues could not be witnesses in the case.
Persuaded by this argument, this court concluded that no remaining prejudice accrued to the defendant, and the substantive claim was permitted to proceed before Ryan J. in the High Court. (SeeKearney v McQuillan and Others).
4. As a consequence of this process, the defendant still had available the defence suggested by the second of the principles laid down by Finlay CJ inDunne (An infant) v National Maternity Hospitalat p. 109 to the following effect:
"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 which he did take was one whichno medical practitioner of like specialisation and skill would have followed had he been taking the ordinary care required from a person of his qualification".
Counsel for the appellant, Mr. Charles Meenan S.C. relied strongly on this principle in the trial before the High Court and in this appeal. He submitted the learned trial judge had erred in failing to have regard to evidence which rebutted to the plaintiff's claim, and that the judge had erred in law in making findings outside the parameters which had been set by this court for the trial.
5. In the sections which follow, there are a number of medical terms and abbreviations. It may be helpful to deal with some of these now.
Asymphysis is a joint in which the bones are separated by fibro-cartilage which minimises movement and makes the bony structure rigid. A cartilage is a dense connective tissue composed of a matrix of cells, closely interconnected. A fibro-cartilage is a type of strong cartilage in which there are dense bundles of fibres in the matrix. The pubic symphysis is the joint between the pubic bones of the pelvis. A symphysiotomy, therefore, is the operation of cutting through the front of the pelvis at the pubic-symphysis in order to enlarge the diameter of the pelvis and to allow delivery of a baby whose head is too large to pass thorough the pelvic opening in the mother.
6. Symphysiotomy was developed to deal with what is termed "obstructed labour", what was seen by clinicians as "absolute disproportion", that is where the baby's head is too large to pass through the mother's pelvis to allow for birth. Thus the issue for determination by the High Court on the plenary hearing was whether there was evidence which might have justified Dr. Connolly in adopting the procedure in 1969. Put in another way, the question was: were there any medical indications of obstruction to the labour or absolute disproportion? But behind this there lay a further dimension to the defendants case: that the procedure was medically warranted, and could be ethically justified by reference the thinking of a group of obstetricians of "like specialisation and skill" whose views then held sway in some Dublin teaching hospitals and some other Irish maternity units observing a Roman Catholic ethos. Our Lady of Lourdes Hospital Drogheda was one such hospital. It was contended that Dr. Connolly was a strong adherent of that school of thinking and, that, in this, he reflected the ethos of the hospital and of other consultants at the time. The reformulation required that the decision to perform the procedure be judged only by the standards of the time and by reference to the skill and judgments of practitioners of the same description and status as Dr. Connolly.
7. The defendant's case on liability may be conveniently considered under these interconnected headings therefore. Mr. Meenan S.C. contended that in accordance with the principles identified inDunne v National Maternity Hospital the procedure was itself medically justified, and that it was in accordance with then current thinking among clinicians who shared Dr. Connolly's viewpoint. He submitted that there had been at the time a divergence of views between English and Irish obstetricians as to when the procedure was justified. This defence relied on articles and papers written by prominent Irish obstetricians of that era, including Dr. Arthur Barry and a Professor McVeigh. These views were published in the Irish Journal of Medical Science, and spoken of at international medical conferences.
8. Those who then supported the procedure in certain circumstances believed it could be justified in order to avoid the possibility of successive caesarean sections. Their view was that a risk of disproportion between a baby's head and a mother's pelvis on one occasion might then give rise to the possibility of a mother considering caesarean sections in successive subsequent pregnancies. The consequence of this view was that, ultimately, repeated incisions and scars could give rise to difficulties in carrying out many caesarean sections in the same...
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