State Claims

Symphysiotomy Claim

  |   Clinical Indemnity Scheme (CIS)
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In 2015, the State Claims Agency successfully defended a case involving a symphysiotomy performed in 1963. The 74 year old plaintiff claimed that she suffered lifelong pain and difficulties after undergoing a “prophylactic” symphysiotomy procedure 12 days before the birth of her baby, in a Dublin Maternity Hospital. The plaintiff claimed there was no justification for the procedure.

The case was heard over 15 days by Mr Justice Cross in the High Court. This case was accepted by the Judge to be a test case for other similar claims.

Submissions were heard in relation to two preliminary issues:


1. Prejudice

The Court thereby held that although some fifty years had passed since the symphysiotomy, there was no prejudice to the defence. This was on the basis that the plaintiff had narrowed her case down to one plea – that there was no justification for the procedure. The defence therefore did not need to rebut any allegations as to the manner in which the procedure was carried out.

2. Statute of Limitations

The Court held that the time to initiate legal proceedings ran from the plaintiff’s ‘date of knowledge’.

The Court accepted the plaintiff’s evidence that her date of knowledge was in August 2011, when she received a copy of her 1963 medical records from the hospital. She gave evidence that she had asked for the medical records following a TV program on symphysiotomies. She instituted legal proceedings in 2012.

These preliminary issues dealt with, the Court went on to hear from a wide range of expert witnesses.

Judgment

Mr Justice Cross found that “the practice of a prophylactic symphysiotomy in 1963 was not a practice without justification”. He said it was indeed a controversial practice but it was strongly defended and the strength of the defence made it impossible for the plaintiff to prove her case.

The Court accepted that medical practice evolves and that, where any practice is a general one, a defendant cannot escape liability if it is established that the practice has inherent defects which ought to be obvious to any person giving the matter due consideration. The Court was satisfied that prophylactic symphysiotomy was a general and approved practice in 1963 within the meaning of the third Dunne principle.

The hospital notes in relation to this plaintiff’s care indicated that the treating doctors were convinced a vaginal delivery would not be possible. Accordingly, they proceeded on a course of symphysiotomy, which, at the time, they had reason to believe was not generally adverse in its effect to the mother and it was safer as far as the child was concerned.

Mr Justice Cross concluded that, given the real fears of multiple Caesarean Sections at that time and the perceived benign effects of symphysiotomy and given the wide acceptance of this practice among the leading consultants in the Coombe Women’s Hospital and the National Maternity Hospital, the plaintiff failed to establish this practice was one with such inherent defects that ought to have been obvious to any person giving the matter due consideration. Therefore, she could not prove her case against the Defendant. The case is currently under Appeal. The Court of Appeal hearing date is the 12th April 2016.

the practice of a prophylactic symphysiotomy in 1963 was not a practice without justification

Article by: Claire Foley, Solicitor/Clinical Claims Manager, State Claims Agency