Symphysiotomy procedure was clinically justified by the standards of the time

Irvine J: Medical negligence – claim for negligence against the Coombe Hospital – procedure known as a symphysiotomy which was carried out on the plaintiff on 25th September, 1963 – whether the trial judge erred in law or in fact in concluding that the plaintiff had failed to establish that there was “no justification whatever, in any circumstances, for the performance of an antenatal symphysiotomy on the plaintiff at the time it was performed” – whether the plaintiff’s claim should be dismissed by reason of her inordinate and inexcusable delay – whether a prophylactic symphysiotomy could not be stated to have been a general and approved practice – Practical Obstetric Problems, 2nd Ed., (London, 1959) – prophylactic symphysiotomy was a practice which was widely accepted at the time by leading consultants – what was not in dispute between the parties – Cunningham, A Textbook of Obstetrics, 4th Ed., (London, 1964) – Gibberd, A Short Textbook of Midwifery¸7th Ed., (London, 1960) – clinical findings and justification – “The Treatment of Disproportion by Combined Lower Segment Caesarean Section with Symphysiotomy”, (1955) I.J.M.S. 299 – there was credible evidence to support finding that the decision to carry out a prophylactic symphysiotomy in the circumstances of Mrs. Farrell’s case was clinically justified by the standards which prevailed in 1963 – Donald, Practical Obstetric Problems, 2nd Ed., (London, 1960) – deviation from a general and approved practice – whether prophylactic symphysiotomy enjoyed general approval amongst a reasonable and respectable body of clinicians in 1963 – Johnstone, A Textbook for Midwifery Students, (London, 1952) – Munro Kerr’s Operative Obstetrics, 7th Ed., (London, 1964) – Björklund’s, Minimally Invasive Surgery for Obstructed Labour: A Review of Symphysiotomy During the Twentieth Century (Including 5000 Cases), (2002) 109 B.J.O.G. pp. 236-248 – trial judge was entitled to conclude that a reasonable and respectable body of clinicians of like expertise to that enjoyed by Dr. Stuart would have approved of the use of prophylactic symphysiotomy in the circumstances of her case in 1963 – appeal dismissed.

"However, by the standards of 1963, and in the very particular circumstances of Mrs. Farrell’s case, it simply cannot be said that there was not credible evidence to support the conclusion of the trial judge that she had failed to establish that the prophylactic symphysiotomy to which she was subjected could never, in any circumstances, have been justified. I am quite satisfied that the trial judge was entitled to conclude that a reasonable and respectable body of clinicians of like expertise to that enjoyed by Dr. Stuart would have approved of the use of prophylactic symphysiotomy in the circumstances of her case in 1963, and that that practice was not one which, judged by the then prevailing standards, could be considered to have been inherently defective within the meaning of the Dunne principles."

Peart J: Medical negligence – claim for negligence against the Coombe Hospital – procedure known as a symphysiotomy which was carried out on the plaintiff on 25th September, 1963 – whether appellant’s claim for damages for personal injury was not statute-barred – trial judge fell into error when he concluded that the appellant’s claim was not statute barred – section 3(1) of the Statute of Limitations (Amendment) Act, 1991, as amended by s. 7 of the Civil Liability and Courts Act, 2004 – earliest date on which she had sufficient knowledge that she might have a cause of action in respect of injury sustained as a result of the ante-natal symphysiotomy – trial judge was incorrect to conclude that she needed to know more than that before time started to run under the statute – plaintiff’s claim dismissed on the ground that the statutory limitation period had passed by the date of commencement of these proceedings – defendant’s cross appeal allowed.

"Whatever she knew at that point in time was sufficient for her to want to seek her medical records. I consider that the respondent is correct to identify the matters to which I have referred at para. 15 above as being at least some of what the appellant knew by the 18th February 2010. In my view the trial judge was incorrect to conclude that she needed to know more than that before time started to run under the statute, and in particular that she needed her medical records before she could be said to have enough knowledge to justify the commencement of proceedings. In my view that was the wrong test. She did not need to know at that point that she had a good case. It was sufficient if she had enough knowledge to connect her injuries to the procedure which she knew had been carried out on her in 1963, and as she admitted herself in her evidence, she knew on the 10th February 2010 that the symphysiotomy she underwent was unnecessary. I believe that the evidence is clear that she had that knowledge as of the 18th February 2010. Medical records would no doubt elaborate upon the knowledge that she had, but were not a prerequisite to time commencing to run."

Irvine J: Medical negligence – claim for negligence against the Coombe Hospital – procedure known as a symphysiotomy which was carried out on the plaintiff on 25th September, 1963 – whether the trial judge erred in law or in fact in concluding that the plaintiff had failed to establish that there was “no justification whatever, in any circumstances, for the performance of an antenatal symphysiotomy on the plaintiff at the time it was performed” – whether the plaintiff’s claim should be dismissed by reason of her inordinate and inexcusable delay – whether a prophylactic symphysiotomy could not be stated to have been a general and approved practice – Practical Obstetric Problems, 2nd Ed., (London, 1959) – prophylactic symphysiotomy was a practice which was widely accepted at the time by leading consultants – what was not in dispute between the parties – Cunningham, A Textbook of Obstetrics, 4th Ed., (London, 1964) – Gibberd, A Short Textbook of Midwifery¸7th Ed., (London, 1960) – clinical findings and justification – “The Treatment of Disproportion by Combined Lower Segment Caesarean Section with Symphysiotomy”, (1955) I.J.M.S. 299 – there was credible evidence to support finding that the decision to carry out a prophylactic symphysiotomy in the circumstances of Mrs. Farrell’s case was clinically justified by the standards which prevailed in 1963 – Donald, Practical Obstetric Problems, 2nd Ed., (London, 1960) – deviation from a general and approved practice – whether prophylactic symphysiotomy enjoyed general approval amongst a reasonable and respectable body of clinicians in 1963 – Johnstone, A Textbook for Midwifery Students, (London, 1952) – Munro Kerr’s Operative Obstetrics, 7th Ed., (London, 1964) – Björklund’s, Minimally Invasive Surgery for Obstructed Labour: A Review of Symphysiotomy During the Twentieth Century (Including 5000 Cases), (2002) 109 B.J.O.G. pp. 236-248 – trial judge was entitled to conclude that a reasonable and respectable body of clinicians of like expertise to that enjoyed by Dr. Stuart would have approved of the use of prophylactic symphysiotomy in the circumstances of her case in 1963 – appeal dismissed.

"However, by the standards of 1963, and in the very particular circumstances of Mrs. Farrell’s case, it simply cannot be said that there was not credible evidence to support the conclusion of the trial judge that she had failed to establish that the prophylactic symphysiotomy to which she was subjected could never, in any circumstances, have been justified. I am quite satisfied that the trial judge was entitled to conclude that a reasonable and respectable body of clinicians of like expertise to that enjoyed by Dr. Stuart would have approved of the use of prophylactic symphysiotomy in the circumstances of her case in 1963, and that that practice was not one which, judged by the then prevailing standards, could be considered to have been inherently defective within the meaning of the Dunne principles."

Peart J: Medical negligence – claim for negligence against the Coombe Hospital – procedure known as a symphysiotomy which was carried out on the plaintiff on 25th September, 1963 – whether appellant’s claim for damages for personal injury was not statute-barred – trial judge fell into error when he concluded that the appellant’s claim was not statute barred – section 3(1) of the Statute of Limitations (Amendment) Act, 1991, as amended by s. 7 of the Civil Liability and Courts Act, 2004 – earliest date on which she had sufficient knowledge that she might have a cause of action in respect of injury sustained as a result of the ante-natal symphysiotomy – trial judge was incorrect to conclude that she needed to know more than that before time started to run under the statute – plaintiff’s claim dismissed on the ground that the statutory limitation period had passed by the date of commencement of these proceedings – defendant’s cross appeal allowed.

"Whatever she knew at that point in time was sufficient for her to want to seek her medical records. I consider that the respondent is correct to identify the matters to which I have referred at para. 15 above as being at least some of what the appellant knew by the 18th February 2010. In my view the trial judge was incorrect to conclude that she needed to know more than that before time started to run under the statute, and in particular that she needed her medical records before she could be said to have enough knowledge to justify the commencement of proceedings. In my view that was the wrong test. She did not need to know at that point that she had a good case. It was sufficient if she had enough knowledge to connect her injuries to the procedure which she knew had been carried out on her in 1963, and as she admitted herself in her evidence, she knew on the 10th February 2010 that the symphysiotomy she underwent was unnecessary. I believe that the evidence is clear that she had that knowledge as of the 18th February 2010. Medical records would no doubt elaborate upon the knowledge that she had, but were not a prerequisite to time commencing to run."