It is estimated that 1,500 women unknowingly and without consent underwent symphysiotomies during childbirth between 1944 and 1992. Survivors were left with severe lifelong after effects, including extreme pain, impaired mobility, incontinence and depression.
Olivia Kearney was awarded €450,000 by the High Court a couple of weeks ago. Essentially, her compliant was that at the time of the birth of her first child, in 1969, she was subjected to a symphysiotomy, after her child had been delivered by caesarean section. A symphysiotomy is a surgical procedure in which the cartilage of the pubic symphysis is divided to widen the pelvis allowing childbirth where there is a mechanical problem. Ms. Kearney did not issue proceedings until 2004 and by that time the surgeon, anaesthetist, radiologist and senior house officer had died. Therefore, the hospital representative sought the trial of a preliminary issue as to whether Ms Kearney should be stopped from bringing the claim where the hospital was allegedly severely prejudiced by the inordinate and inexcusable delay in the issuance of proceedings and whether the proceedings were statute barred.
The Judge in the High Court case said that ‘there would have to be expert evidence available on both sides to debate the appropriateness of the procedure carried out’ and that ‘such evidence could only be given by the person who carried out the procedure explaining the circumstances and the necessity for such a procedure’. Hence, in 2006 the High Court decided that Ms Kearney’s action against the hospital representative be dismissed because of the inordinate and inexcusable delay in issuing the proceedings. This decision was then appealed to the Supreme Court.
Ms. Kearney re formulated or amended her case in the Supreme Court to a claim that there was no justification, whatever, in any circumstances, for the carrying out of a symphysiotomy operation on Ms Kearney at the time it was performed and following delivery by caesarean section. This meant that as to how the procedure took place or why it took place was no longer relevant to the issue.
Ultimately, the court emphasised that the re-stating or amending of Ms. Kearney’s case was fundamental to its decision or the appeal. The judge said that had the claim remained as it was when the matter was before the High Court, the Supreme Court must well have agreed with the High Courts findings. Because the claim was amended no remaining prejudice accrued to the hospital by reason of the death of any of the doctors involved as their evidence as to what they did, or why was no longer relevant to the issue.
The hospital was could defend the case by establishing by credible evidence a realistic reason for the performance of the procedure in the circumstances actually prevailing in relation to Ms. Kearney in 1969. Hence the Court permitted Ms Kearney’s case to proceed and she was awarded €450,000.00.
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