On May 1 2015 a 74-year-old woman lost her High Court medical negligence claim on the grounds that in 1963 prophylactic symphysiotomy was not a practice "without justification".
The case was heard by Mr Justice Cross over a 15-day period. The plaintiff claimed that there was no justification for performing the symphysiotomy 12 days before the birth of her first child and without any trial of labour. She alleged that she suffered lifelong pain, incontinence, a nervous breakdown and the inability to bond with her baby as a result. The defendant's evidence was that a pelvimetry and clinical examination under anaesthetic were undertaken, during which the Muller Muno Kerr manoeuvre was performed and the head would not engage. A symphysiotomy was necessary to enable a subsequent vaginal delivery.
The judge concluded that in 1963 it was accepted that a trial of labour was not always required for a consultant to conclude that a vaginal delivery would not be possible. In those circumstances, prophylactic symphysiotomy, without a trial of labour, was a reasonable, albeit limited, option. The judge noted that the symphysiotomy procedure was used during the period in question due to fears over multiple caesarean sections. The symphysiotomy procedure was not believed to be generally adverse in its effect on the mother, and was safer as far as the child was concerned.
The judge acknowledged that a symphysiotomy was a controversial procedure and would not be performed on a patient today following the introduction of 'active management of labour'. However, he accepted that medical practice evolves over time. He noted that even if a procedure is subsequently discontinued or outruled, it does not mean that it could be described as negligent, and noted that medical science could not advance if such strictures were applied. However, he further noted that a defendant cannot escape liability if a plaintiff can establish that a practice has inherent defects, which ought to be obvious to any person who would give the matter due consideration.1
The judge noted that the practice was vigorously defended and that there was no evidence of any peer criticism of the plaintiff's procedure. The court accepted that the issue was whether the plaintiff had established that there was no justification for the performance of the symphysiotomy at the time it was performed. The court held that the plaintiff had not established this practice as one with such inherent defects that ought to have been obvious to any person giving the matter due consideration.2 The judge acknowledged that while it was a controversial practice, it was strongly defended to the point where it was impossible to conclude that the plaintiff had proved her case. As such, the judge held that the plaintiff had failed in her case against the defendants. In his concluding remarks, he said:
"though I would in the words of Sir Ranulph Crewe, Chief Justice of England, 'take hold of a twig or twine-thread' to uphold the plaintiff's case, I must find that this remarkable lady whose story indeed deserves to be told must fail in her case against the defendants."
1 Dunne (an infant) v National Maternity Hospital  IR 91.
This article first appeared in the International Law Office Healthcare Newsletter 17 June 2015.
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