Supreme Court allows medical negligence claim against hospital despite 35-year delay due to reformulated case.

[2010] IESC 20

THE SUPREME COURT

343/2006

Hardiman J.

Fennelly J.

Macken J.

Between:

OLIVIA KEARNEY

Plaintiff/Appellant

v.

ETHNA McQUILLAN and THE NORTH EASTERN HEALTH BOARD

Defendants/Respondents

JUDGMENT of Mr. Justice Hardiman delivered the 26th day of March, 2010.

1. This is an action for medical negligence, breach of duty and battery. The plaintiff’s complaint fundamentally is that at the time of

the birth of her first child, in 1969, she was subjected to a procedure called symphysiotomy, after her child had been delivered by

caesarean section by a Dr. Connolly, a consultant at Our Lady of Lourdes Hospital, Drogheda, Co. Louth. A symphysiotomy is the

cutting through of the cartilage that binds the two pubic bones thus permanently enlarging the pelvis.

2. The present issue in the case arises because the proceedings were not issued until the year of 2004. By that time, the surgeon Dr.

Connolly, the anaesthetist, the radiologist and the senior house officer who attended in the theatre were all unfortunately dead. Of

nineteen people identifiable as having been involved in the plaintiff’s care a total of seven are dead, the whereabouts of another

seven is unknown, two are believed to be in Africa and three are available. It was stated without contradiction that those three were

nurses involved in the plaintiff’s general care and had nothing to add on the topic of the symphysiotomy.

3. In those circumstances the first-named defendant, who is the representative of the hospital, brought a motion dated the 23rd

June, 2005 in which she sought an order directing the trial of a preliminary issue as to whether:

“The plaintiff is estopped from proceeding further with her claim herein against the first-named defendant by reason of

the inordinate and inexcusable delay on the part of the plaintiff in instituting the proceedings herein against the first-

named defendant as a consequence whereof the first-named defendant has been severely prejudiced in the presentation

of its defence to the said claim.”

4. The first defendant had also sought a preliminary issue on the question of whether the action was statute-barred but did not

proceed with this application. By order dated the 27th July, 2006 the High Court (Dunne J.) ordered that the plaintiff’s action against

the first-named defendant “be dismissed by reason of the inordinate inexcusable delay on the part of the plaintiff in instituting the

proceedings herein.”

5. The reasons for this were given in the judgment of the High Court (Dunne J.) delivered on the 31st May, 2006.

6. From this judgment and order the plaintiff has appealed.

The decision in the High Court.

7. The learned High Court Judge set out the considerable disadvantages which had accrued to the first-named defendant by the long

delay of thirty-seven years between the act complained of, the carrying out of the symphysiotomy, and the issue of proceedings in

2004. This delay in itself was explained by the plaintiff on the basis that she said she was never told that she had been subjected to

a symphysiotomy and did not discover it until, after listening to a radio programme, she was moved to seek her medical records from

the hospital in the year 2002. On the other hand, it must be noted that the carrying out of the symphysiotomy “before closure” but

after the caesarean delivery, was plainly, if tersely, noted on the operation note. An important ground of the learned trial judge’s

decision to prevent the action proceeding was the difficulty of deciding the question of whether the plaintiff had or had not been told

of the procedure carried out in the absence of Dr. Connolly.

8. The case which the High Court was dealing with was that defined by the summons and statement of claim herein. It was pleaded

that the symphysiotomy had been carried out without her knowledge or consent and that it constituted a battery upon the plaintiff

by Dr. Connolly. It was also said that the operation amounted to negligence and particulars of negligence were set out under eleven

sub-headings in the statement of claim. It appears that the manner in which the symphysiotomy was carried out, as well as the fact

that it was carried out at all, was the subject of complaint.

9. In the course of the hearing the first-named defendant relied primarily on the absence of useful witnesses which, though

unfortunate, was not an unlikely development having regard to the vast period of time that had been allowed to elapse.

10. The plaintiff, however, relied on a medical report of Mr. Clements, the well known English gynaecologist who has often given

expert evidence in these courts, to the effect that the procedure was, in the conditions prevailing in 1969, wholly unjustifiable and

improper. It appears to have occurred to counsel on both sides that the issues in the action could, perhaps, be greatly limited in view

of Mr. Clements report. In opening the case for the plaintiff in the High Court Mr. Turlough O’Donnell S.C. said:

“But quite apart from the general discussion inherent in Mr. Clements report about symphysiotomy in general terms at the

time of Mrs. Kearney’s operation, there is a further and very specific issue which is the performance of a syphysiotomy

after caesarean section, which is the specific allegation in this case. Quite apart from discussion of general issues and a

statement of medical knowledge at the time, Mr. Clements forms the view and encapsulates it thus of the specific issue:

‘There is outright condemnation of symphysiotomy in a patient who has already had caesarean section’

It is in my submission an allegation that may be dealt with because in the particular circumstances of this particular case

it is open to the defendant to deny that strong assertion, if it can, an assertion which goes to the heart of the case

against the defendant and it is an allegation to put it in terms, as set out in the Dunne v. Holles Street case.

It is in effect an allegation that no medical practitioner at this time would do such a thing. It goes further than the

general allegation that symphysiotomy is an operation which had not been carried out; what Mr.Clements says in effect

that symphysiotomy following caesarean section is something which is outrightly condemned.”

11. Equally, in his submissions Mr. Charles Meenan S.C. for the first-defendant said:

“Mr. Clements view is that a symphysiotomy can be carried out as a matter of urgency but he says ‘not following a

caesarean section’. That seems to be, in a sense, the substance of his report.”

12. Dunne J., having considered the evidence and submissions, dismissed the claim. Although, at p.3 she summarised the plaintiff’s

case by saying “she averred that that was an unnecessary procedure performed on her without her consent.” But at p.22 of the

judgment Dunne J. concluded that:

“I have no doubt but that in an action such as this it would of necessity follow that there would have to be expert

evidence available on both sides to debate the appropriateness of the procedure carried on the plaintiff. Such oral

testimony could not and would not be carried out in a vacuum. It seems to me that such evidence could only be

considered in the light of the actual testimony from the person who carried out the procedure explaining the

circumstances and the necessity for such a procedure arising out of that individual patient’s care. The discussion of the

merits or otherwise of such procedure in academic terms would not in my view help to decide the principal issue in this

case as to whether or not there had been negligence on the part of the first-named defendant through its consultant in

carrying out the procedure.”

13. If the case had remained in the condition it was when the matter was before Dunne J., this court might well have agreed with her

disposition of the case for the reasons given above. There can be no doubt that, as the plaintiff’s written submissions very sensibly

conceded, this seemed to be a strong case to prohibit the plaintiff’s claim from proceeding by reason of the extraordinary lapse of

time and the considerable prejudice accruing to the first-named defendant.

14. However, the case has not remained in the condition in which it was first pleaded, and in which it came before Dunne J. After

some discussion of what precisely the plaintiff’s complaint was before this Court, and having taken express instructions, Mr. Turlough

O’Donnell S.C. was in a position to reformulate his client’s case in a much more focussed fashion. He put it as follows. His client’s case

was:

“That there was no justification whatever, in any circumstances, for the performance of a syphysiotomy on the plaintiff

at the time it was performed and following delivery by caesarean section.”

15. This formulation appears wholly to prescind from any complaint about the manner in which the symphysiotomy was carried out, as

opposed to the decision to carry it out at all. It also seems to render irrelevant the matter of any contemporary records said to be

missing, and the reason for their disappearance.

16. 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-

named 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.

17. It should be recorded that, in further discussions with the court, Mr. O’Donnell conceded that the case, reformulated as it was,

would be defeated if the 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 hospital 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.

18. In those circumstances, it appears to the Court that no remaining prejudice accrues to the defendant by reason of the death of

Dr. Connolly and the other doctors mentioned. In particular, the Court is satisfied the hospital will continue to have available to it the

defence suggested by the second of the principles laid down by Chief Justice Finlay in Dunne (an infant) v. National Maternity

Hospital and Anor. [1989] IR 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.”

19. It appears to the Court that, by reason of the reformulation of the case, the hospital 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.

Position of the second-named defendant.

20. The Court was informed that the plaintiff had succeeded in marking judgment in default against the second-named defendant.

This is the Health Board. However we were also informed that that defendant presently has a motion pending seeking to set aside the

judgment which had been marked and seeking to defend the action on the basis that it was not liable in law for what was done by the

hospital or a consultant employed by it. This state of affairs requires no comment other than that it is possible that the plaintiff may

have good reason for requiring the presence of the first, as well the second-named, defendant in the action.

Conclusion.

21. In the circumstances of the case, altered as indicated above during the hearing, along the lines which had been canvassed before

the learned trial judge, the Court will set aside the order of the High Court and permit the plaintiff’s claim to proceed. This is done

very strictly on the basis of the reformulated claim which is set out above.