Linda Farrell v John Ryan
| Jurisdiction | Ireland |
| Judge | Mr. Justice Cross |
| Judgment Date | 01 May 2015 |
| Neutral Citation | [2015] IEHC 275 |
| Court | High Court |
| Date | 01 May 2015 |
[2015] IEHC 275
THE HIGH COURT
BETWEEN
AND
Personal injury – Damages – Medical negligence – Post Traumatic Stress Disorder – Statute of limitation
Facts: The plaintiff sought damages for injuries sustained as a result of a negligent non-emergency unnecessary symphysiotomy procedure undertaken by the defendant some twelve days prior to the delivery of plaintiff's first child. The plaintiff alleged that the procedure was carried out without justification. The plaintiff alleged that she suffered Post Traumatic Stress Disorder during her life as a result of the effects of the procedure. The defendant contended that the present proceedings were barred by virtue of the statute of limitations.
Mr. Justice Cross held that the plea of the defendant that the petition was barred by statute of limitation would be denied. The Court stated that the plaintiff had the knowledge ‘justifying embarking on the preliminary to issue a writ’ only at the stage when she had the hospital notes. The Court held that the defendant failed to prove that the defendant faced a real and serious risk of an unfair trial or a clear and patent unfairness in defending the case. The Court further held that the petition for damages for injuries sustained as a result of a negligent non-emergency unnecessary symphysiotomy procedure would be denied. The Court held that there was no evidence of any peer criticism of the plaintiff's procedure. The Court held that the plaintiff failed to establish that the procedure was marked with inherent defects and medical negligence. The Court further stated that a procedure which is common in the present world must once have been ‘unprecedented’ and it might have generated controversy.
2 1.1 The plaintiff was born on 9 th January, 1939 and claims damages against the defendant as secretary and general manager of the Coombe Hospital, Dublin and as the representative of the hospital. The plaintiff's claim is that on 25 September, 1963, some twelve days prior to the delivery of her first child, the defendants carried out a non-emergency unnecessary symphysiotomy.
3 1.2 The plaintiff claims that the said procedure was in the circumstances negligent and that as a result thereof, she has sustained significant personal injuries.
4 1.3 The case proceeded for fifteen days of evidence. I was greatly assisted by all the witnesses I heard and I entirely accept that every witness gave their evidence truthfully and I also accept the independent expertise of those witnesses called as experts. I recognise that this issue is one that has generated much emotional controversy which at times has filtered through to some of the experts. While the independence of one of the defendant's experts was called into question due to alleged remarks made to another patient, I fully accept that this person gave independent expert evidence. Similarly, while one of the plaintiff's expert witness unfortunately in her report described what occurred to the plaintiff as "abuse". I also accept her evidence as being independent expert evidence.
5 1.4 The plaintiff who has worked for the vast majority of her life in various factories and as a waitress and homemaker, was married to a painter in May 1961. On 18 th September, 1963, she was admitted to the Coombe Hospital on her first pregnancy with a believed estimated date of delivery of 7 th September, 1963. Subsequent events clearly indicated that the estimated date of delivery calculated on the basis of the last stated menstrual period was an error.
6 1.5 The plaintiff signed a form stating:-
"I gave my consent for any operation or anaesthetic which may be necessary."
7 1.6 The plaintiff was examined on admission and it was noted that the "Vx Eng" (head engaged in maternal pelvis) and x-ray pelvimetery was ordered. In the light of subsequent events, it seems probable that the notation that baby's head was engaged was, in fact, incorrect. Nothing materially turns upon that inaccuracy.
8 1.7 The x-ray pelvimetery was reported as showing a: "generally contracted anthropoid, sub-pubic narrow. T.C.10.8. T.10.5. The foetus is small but there is some disproportion, also outlet is diminished." "T.C" which refers to the True Conjugate was stated in evidence to be "normally" 11.5cm and the plaintiff's measurement was 10.8. The T. refers to transverse diameter which is stated as "normally" being 13.5cm but in the plaintiff's case was 10.5cm. The sub-pubic arch was described as "narrow".
9 1.8 It appears that on 20 th September, 1963, there was an episode of regular uterine contractions for which the plaintiff was admitted to the labour ward but labour did not continue. There is some doubt expressed that the date, September 20 th in the hospital notes might be a misreading of September 30 th but this is on balance unlikely.
10 1.9 On 25 th September, 1963, an examination under anaesthesia (EUA) was performed and at this examination it was noted "the head could not be made to engage in the pelvis. Symphysiotomy performed. Minimal bleeding. No difficulty. Good one inch gap obtained between symphysis."
11 1.10 At the conclusion of the EUA, the symphysiotomy was performed by the Master of the Coombe at the time. The gap in the symphysis was stated to be one inch. I believe that the Master may have anticipated the possibility of performing a symphysiotomy based upon the pelvimetry prior to the EUA as the plaintiff recalls him saying something to the effect that they were going to help her deliver the baby. However, I find that the decision to perform the procedure was not made until the EUA was completed.
2 2.1 The pelvic girdle is made up of three parts. At the back is the sacrum which connects with at its low end with the coccyx (the tailbone of the spine) and that at its upper most end with the 5 th lumbar vertebra. At each side the sacrum articulates with an ipselateral innominate bone which, in turn, articulate with each other anteriorally at the symphysis pubis. The symphysis pubis is a strong ligament which is at the front of the pelvis between the ends of the innomiates.
3 2.2 Symphysiotomy involves an incision being made in length above the upper boarder of the symphysis pubis and the tissues are divided to allow a gap to facilitate vaginal delivery. The history of the procedure will be described further below.
4 2.3 The plaintiff says, and I accept, that she did not know that a symphysiotomy was going to be performed. She expected that her baby would be delivered. When she woke in some considerable pain, she was not told for some time that the baby had still not been delivered. She had a band around her waist and had to be assisted by a fellow patient to go to the toilet. While there, she had a very frightening experience in which she recounted and I accept that she felt the sensation of being "split apart". The plaintiff was encouraged to walk the corridor after the symphysiotomy which she did though with difficulty.
5 2.4 On 3 rd October, 1963, there is a note in the records documenting that the plaintiff had not started labour and it was questioned that she was "near term now". Her abdomen was noted to be difficult to palpate and the question of whether the baby was breached was raised.
6 2.5 The plaintiff was readmitted to the labour ward on 6 th October, at 6:.30pm, there were strong and regular contractions and she was given an injection for pain relief and at 5:45am on 7 th October, 1963, she was delivered by mid-forceps delivery due to "failure to advance". At this stage, a gap of half an inch was noted in the symphysis and the tight fit under the pubic arch was noted and it was documented that the pelvis "otherwise felt adequate". Accordingly, assuming that the hospital notes are correct, the gap in the symphysis had reduced from one inch to half an inch by the time of the birth.
7 2.6 The delivery was conducted under general anaesthetic and the plaintiff delivered herself of a baby girl who was noted to be slow to revive and was transferred to the paediatric unit.
8 2.7 On 17 th October, 1963, the plaintiff was discharged home having had her nylon sutures removed. There was a slight discharge from her symphysiotomy scar noted.
9 2.8 Every year, the Coombe Hospital published a detailed clinical report as to the births in that year. The report for 1963 indicated that in that year, symphysiotomy was carried out in five cases, four times on a primigravida (first birth) and ones on a multiparae. The operation was performed on three patients during labour and was followed by "easy delivery". One patient had a caesarean section because of a breach presentation and a small pelvis. Symphysiotomy was done following the section. The plaintiff's procedure is described as follows:-
"One patient had the operation two weeks before term. She had an easy low forceps delivery."
10 2.9 In the notes to the report, the plaintiff's case is summarised as follows:-
"Generally contracted anthropoid pelvis. T.C.10.8 T.10.5. Narrow sub-pubic angle. Symphysiotomy two weeks before term. Low forceps delivery without difficulty at term."
11 2.10 It was also noted in the 1963 report that one of the five Symphysiotomies was a stillbirth which occurred in the case of a failed forceps delivery. This was in the case of a patient with a previous spontaneously delivery of a baby.
2 3.1 The plaintiff's evidence and hospital notes confirmed that the plaintiff had one further pregnancy in 1968 and on 1 st December, 1968, at 42 weeks gestation, she had a forceps delivery under general anaesthetic. The delivery was...
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