The Supreme Court has set aside the dismissal of Olivia Kearney’s claim over a symphysiotomy performed after her baby was delivered by caesarean section in 1969. The claim may proceed only in its reformulated form: that there was no justification, in any circumstances, for performing the procedure when it was done.
The court’s judgment, delivered by Mr Justice Hardiman on 26 March 2010, addressed the effect of a 37-year delay before proceedings were issued in 2004. The first-named defendant, described in the judgment as the hospital’s representative, argued that the delay had severely prejudiced its defence. The High Court had dismissed the claim against that defendant in 2006 because of inordinate and inexcusable delay.
The judgment records that several people involved in Kearney’s care had died or could not be located by the time of the proceedings. The surgeon, anaesthetist, radiologist and senior house officer who attended in theatre were dead. The High Court had considered it difficult to determine whether Kearney was told about the procedure without the surgeon’s evidence. Kearney said she did not learn of the symphysiotomy until 2002, after hearing a radio programme and seeking her medical records.
At the Supreme Court hearing, her counsel narrowed the claim to whether the procedure was justified at all, rather than how it was carried out or what the surgeon specifically understood at the time. Counsel also conceded that the claim would fail if the hospital could establish any circumstances in which a symphysiotomy could have been justified by a consultant gynaecologist in Ireland in 1969, taking account of the circumstances of Kearney’s case.
The court said that narrowing the claim removed the need for the hospital to establish the surgeon’s specific reasons for acting. It could defend the case with credible evidence of a realistic reason for the procedure in the circumstances, including that the baby had already been delivered by caesarean section. The judgment did not decide whether the procedure was negligent or whether it was justified.
The Supreme Court set aside the High Court order and allowed the claim against the first-named defendant to proceed strictly on the reformulated basis. The judgment also noted that judgment in default had been marked against the second-named defendant, the North Eastern Health Board, which had a pending motion to set it aside and seek permission to defend the action. The court made no ruling on that motion.