The High Court dismissed proceedings against the first defendant in a claim arising from a symphysiotomy performed after a caesarean section in 1969, finding that the passage of time created a real and serious risk of an unfair trial.
The ruling, delivered by Ms Justice Dunne on 31 May 2006, followed an application by the first defendant to have a preliminary issue determined: whether the plaintiff should be prevented from continuing her claim because of inordinate and inexcusable delay and resulting prejudice. A separate limitation argument was not pursued, and the application proceeded on the basis that the claim was not statute-barred.
The plaintiff entered Our Lady of Lourdes Hospital in Drogheda on 16 October 1969. On 19 October, Dr Gerard Connolly performed an emergency caesarean section and a symphysiotomy. The plaintiff alleged that the latter procedure was unnecessary, was carried out without her consent or knowledge, and caused continuing injuries. The court did not decide whether those allegations were true or whether the procedure was negligent.
The plaintiff’s proceedings began in May 2004, more than 34 years after the procedure. She said she sought her medical records after hearing a radio discussion about symphysiotomy and first learned from the records that she had undergone the procedure. Her general practitioner also said she had not been informed of it at the time. Whether the plaintiff had been told was a factual issue that would require oral evidence.
The first defendant relied on the deaths of Dr Connolly and other medical staff, missing or incomplete hospital records, and difficulties locating other staff. Of 19 people identified as involved in the plaintiff’s care, the hospital said seven were dead, seven could not be located, two were in Africa and three had been found in Ireland. The defence argued that Dr Connolly’s evidence was central to explaining the circumstances and clinical judgment behind the procedure.
The plaintiff argued that expert evidence could address whether the procedure was appropriate and that available nurses might assist. Justice Dunne concluded that expert debate alone could not resolve the central questions without evidence from the doctor who performed the procedure, and that the available nurses could not practically address those issues.
Applying the principles on delay and fairness in earlier cases, the judge found a real and serious risk of an unfair trial and concluded it would be unjust to require the first defendant to defend the proceedings. She granted the relief sought and dismissed the action against that defendant. The judgment did not determine the plaintiff’s allegations on their merits. It also recorded that judgment in default of defence had already been obtained against the second defendant.