Tortious Liability for a Negligently Performed Surgery In Utero under English and Irish Law

Date01 January 2016
AuthorMagdalena Duggan
Tortious Liability for a Negligently Performed
Surgery In Utero under English and Irish Law
In April 1981 a team of specialists from the San Francisco Children’s Hospital,
directed by Prof. Michael Harrison, decided to operate on 42 year old R osa Skinner,
who was at the time seven months pregnant with twins. e surgery was not,
however, aimed at preserving the life or health of Mrs Skinner, as its objective was to
remove a life-threatening defect suered by one her foetuses, namely, a congenital
blockage of a urinary tract, causing pathological extension of the bladder.
In the course of the procedure, subsequently accla imed as the rst foetal surg ery in
the world, Prof. Harrison managed to successfully place a custom-made catheter1
inside the foetus’s bladder, allowing for normal release of urine into the amniotic
uid. Both twins were safely delivered two weeks aer the operation. e twin
operated on, who had been named Michael in honour of his saviour, made a full
recovery and, as a grown-up man, decided to undertake a professional career in
Since 1981 perinatology3 has become one of the most dynamic developing branches
of modern medicine with prenatal operations being gradually introduced in more
and more treatment centres all over the world.4 According to Prof. Harrison, “of
course there have been setbacks in foetal surgery but progress has been fabulous”.5
For a number of reasons these “setbacks” are particularly interesting to lawyers.
We can assume that private law of a majority of European jurisdictions recognise
liability for damage caused as a result of an injurious event that has taken place
before one’s birth. It is important, however, to acknowledge that in the situations
discussed not one but, in fact, two conjoined human entities are being directly
subjected to medical treatment. e existing immediacy may, in turn, throw new
light on the basis of liability in tort that come into operation if a negligently
1 e device is now referred to as “the Harrison’s shunt”
2 S. Russell, “First Fetal Surgery Survivor Finally Meets his Doctor” San Francisco Chronicle 5
May 2005 i?f=/c/a/2005/05/05/BAGG9CK9F41.DTL
#ixzz0cnQW8I [Accessed 10 October 2014]; S-K. Templeton, “Emergency and Womb : How
Surgeons Save the Unborne Sunday Times 8 October 2006
sto/news/article176699.ece [Accessed 10 October 2014]
3 e area of obstetrics concentrating on management of high–risk pregnancies
4 A. Postoła, “Ratownicy Nienarodzonych” (2007) 47 Wprost,
Ratownicy-nienarodzonych/?I=1300 [Accessed 10 October 2014]
5 Templeton, supra note 2
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performed in utero treatment results in damage suered by the foetus and/or by
the pregnant woman. Furthermore, it is likely to alter the existing denition of the
term “patient” under contemporary me dical law.
is paper discusses the origins and conditions of tortious liability for antenatal
injuries in England and Ireland, rstly, from a general perspective and, secondly,
in the context of negligently performed in utero treatment. It is hoped that the
analysis will help establish to what degree the existing legal mechanisms respond to
the ethical and moral challenges that the gradual popularisation of prenatal therapy
has brought.
Foetal Surgeries: Types and Risks Involved
Medical literature describes three surgical techniques that are commonly used to
treat various foetal defects.6 Each of them carries diverse degrees of maternal and
foetal risk and is characterised by dierent success rates.
e rst and most invasive form of the procedure is the so-called “open foetal
surgery”, in the course of which a pregnant woman’s abdomen and uterus are open
and the surgery is performed on a partially exposed foetus. e technique has been
used, for instance: to correct malformations of foetal urinary tracts, to remove
congenital tumours of the foetal sacral area, to repair neurological defects, such as
myelomeningocoele, or to treat pulmonary sequestration.
e second form, referred to as “EXIT” (Ex-utero Intrapartum Treatment), can
be treated as a subcategory of open foetal surgery and described as an “extended”
form of a Caesarean section. EXIT is usually carried out in cases of diagnosed
life-threatening obstructions of foetal airways caused, e.g. by congenital laryngeal
atresia or large tumours located in foetal mouth, neck and lungs. e technique
consists in performing a uterine incision to deliver the foetus’s head only with the
rest of its body remaining inside the womb, attached by an umbilical cord to the
maternal circulation. Aer the obstruction is removed, the surgeon performs a
complete delivery.
Finally, the third form of foetal surgery, available since the early 1990s, is the
so-called “fetoscopic surgery”, combining both endoscopic and sonographic
techniques. It allows the operator to access the fetoplacental unit with the use of
very small instruments and, hence, it requires minimal surgical invasion into the
6 See, for example: K.M. Bullard and M.R. Harrison, “Before the Horse is out of the Barn: Fetal
Surgery for Hydrops” (1995) 19 Seminars in Perinatolog y 462; G. Cunningham et al, Williams
Obstetrics, 23rd edn (New York: McGraw–Hill Medical, 2009), p. 305; J.A. Deprest, E. Gratacos
and L. Lewi in: R.K. Creasy, R. Resnik and J.D. Iams (eds), Creasy and Resnik’s Maternal–Fetal
Medicine: Principles and Practice, 6th edn (Philadelphia, Edinburgh: Saunders, 2009), p. 433; R.
Milner and T.M. Crombleholme, “Troubles with twins: Fetoscopic erapy” (1999) 23 Seminars
in Perinatology 474; D.S. Walsh and N.S. Adzick, “Foetal Surgery for Spina Bida” (2003) 8
Seminars in Neonatolgy 197
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