The Supreme Court upheld a finding that a symphysiotomy performed on Olivia Kearney after her baby had been delivered by caesarean section in 1969 was negligent. It reduced her general damages award from €450,000 to €325,000.
In a judgment dated 11 July 2012, Mr Justice John Mac Menamin dismissed the defendants’ challenge to liability but allowed their appeal on the amount of damages. The appeal concerned a High Court judgment delivered by Mr Justice Ryan on 23 March 2012. The Supreme Court substituted a single award covering past and future general damages.
Mrs Kearney was 18 when the procedure was carried out at Our Lady of Lourdes Hospital in Drogheda. Her first child had just been delivered by caesarean section. The hospital’s nominated representative argued that the operation could be justified under the medical standards of 1969 and the views of a group of obstetricians who supported symphysiotomy in certain circumstances.
The Supreme Court said the evidence did not establish general acceptance of that approach among Irish practitioners. It upheld the trial judge’s finding that the medical records showed no pelvic deformity or evidence of the “absolute disproportion” that could have justified the procedure. The baby had already been delivered, and the court found no sufficient indication for the operation in Mrs Kearney’s case.
The court concluded that no practitioner of comparable specialisation and skill, exercising ordinary care, would have performed it in those circumstances. It said the defence had not shown that the procedure was sufficiently general or approved among comparable practitioners to meet the legal test for negligence.
The second defendant, the North Eastern Health Board, had been struck out of the case before the hearing. The proceedings were issued in 2004. An earlier Supreme Court decision in 2010 had allowed the substantive claim to proceed despite the defendants’ argument that delay had caused insurmountable prejudice, after the claim was reframed around whether the operation was justified by the standards prevailing in 1969.
On damages, the Supreme Court acknowledged Mrs Kearney’s physical pain, incontinence, back problems and psychological distress, including the trauma she experienced after learning in 2002 what procedure had been performed. It said, however, that the High Court had not sufficiently weighed the evidence about the extent and timing of her psychological symptoms against the wider record of her life, including that she had worked for about 25 years. The court stressed that this did not diminish the seriousness of her injuries.
The Supreme Court therefore upheld liability but replaced the High Court’s €450,000 award with €325,000 in general damages.