The High Court found the defendants liable in negligence after concluding that the midwifery care regime broke down during a woman’s 1994 labour at the National Maternity Hospital. It awarded her €255,500 in damages for a third-degree tear, resulting in severe faecal incontinence and a colostomy that the court said was most probably permanent.
The judgment, delivered by Mr Justice Henry J. Abbott on 2 July 2004, concerned the birth of the plaintiff’s third child. The hospital records described the first and second stages of labour as uncomplicated. The court found that the plaintiff sustained a third-degree perineal tear, which was repaired, but later led to serious incontinence. After other treatment, she underwent a colostomy.
The plaintiff alleged that the midwife failed to manage her pushing and breathing appropriately, increasing the risk of an uncontrolled delivery and tear. She also argued that her history, the baby’s position and an ultrasound estimate of its size called for an episiotomy. The defendants denied negligence and said the complication occurred despite reasonable care.
The court accepted that the evidence supported the plaintiff’s account that a student midwife told her to push before she was fully dilated and that this direction was not appropriately changed during the second stage. It considered that finding against the usual professional practice, but accepted the plaintiff’s evidence, noting the absence of detailed records about her pushing, breathing and the state of her perineum, and that the student midwife did not give evidence.
The judge described the hospital practice as restrictive use of episiotomy supported by close observation, coaching on breathing and pushing, and timely intervention where needed. He found that a planned episiotomy was not required merely because of the plaintiff’s previous episiotomies, the baby’s position or the estimated weight. The competing professional views on planned episiotomy were both respectable, and choosing one over the other did not itself amount to negligence.
However, the judge found on the balance of probabilities that the tear arose from the non-establishment or breakdown of the care regime on which the restrictive approach depended. He also gave an alternative basis for liability: the defendants’ approach relied on a high standard of care, and its failure exposed the plaintiff to an added risk of a tear. Applying the principle discussed in McGee v National Coal Board, he held that the plaintiff should not bear the resulting evidential difficulty in separating causes.
The award comprised €150,000 for past and future pain and suffering, €52,500 for past and future loss of earnings, €5,000 in agreed past special damages and €48,000 for future colostomy appliance costs.