Kearney v McQuillan: Religion, Harm and History.

In March, in Kearney v. McQuillan Mr. Justice Ryan (pictured left) awarded damages in the amount of €450,000 to Olivia Kearney; a 60 year old woman who was subjected to a symphysiotomy by Dr. Gerard Connolly after she gave birth to her son Martin at Our Lady of Lourdes Hospital in Drogheda in 1969 (for more about the hospital and Dr. Connolly see the Report of the Lourdes Hospital Inquiry).  She was 18 years old. The consequences were devastating and included lifelong pain and discomfort, inability to bond with her baby, lifelong incontinence and lack of sexual function, inability to have other children (because of her fears about the consequences), ‘victim’s guilt’ and severe depression. Her depression degenerated into a major psychiatric disorder when she discovered that her injuries had been caused by a deliberate act. The procedure was carried out without her knowledge or consent and she did not understand what had happened until, in 2002, she heard other women discussing their experience of symphysiotomy on a radio show. In the High Court Mrs. Kearney argued “there was no justification whatever, in any circumstances, for the performance  of a syphysiotomy on [Mrs. Kearney] at the time it was performed and following  delivery by caesarean section.”  The High Court agreed. To underline the significance of this decision, the defendants would have succeeded if they had established in credible evidence any realistic reason for the procedure in the circumstances actually prevailing in relation to Mrs. Kearney in 1969. On the contrary, the position taken in the medical literature in 1969 was that symphysiotomy could only be justified where the mother’s pelvis was too small to allow the baby’s head to pass during vaginal delivery and a caesarean section was otherwise impossible.  Even if a symphysiotomy could be justified on the basis that it would make future vaginal delivery easier, Mrs. Kearney’s pelvis was of a normal size. There was no feto-pelvic disproportion and there was no evidence to suggest that she would have encountered future problems with vaginal delivery – her caesarean had been necessitated by the baby’s position on delivery. The procedure could not be justified where, as in Mrs. Kearney’s case, a caesarean had already been performed. Mrs. Kearney’s case is being appealed to the Supreme Court.

The defendants’ arguments reveal a great deal about the civil legal system’s orientation towards ‘old cases’ of this kind. Some readers may be aware that the defendants had argued in the High Court and in the Supreme Court that Mrs. Kearney should not have been permitted to bring her claim, since their defence would be unduly prejudiced as a consequence of her ‘inordinate delay’. See the earlier Supreme Court discussion of Mrs. Kearney’s delay in suing, and of her reformulation of her claim to eliminate prejudice to the defendants here. In the High Court, Ryan J. said that “[i]t is disturbing to consider how close this victim of grave medical malpractice  came to being sacrificed on the altar of fair procedures. The case is a salutary  proof of the balance that must exist between legal rights and protections in the  interest of justice.” This case therefore, points up the severe shortcomings of the limitations regime, and its function as an obstacle to redress for victims of past institutionalised gender-based violence. The group Survivors of Symphysiotomy have asked that ‘the statute of limitations should be lifted for one year’ to allow the 185 or so living victims to bring appropriate civil claims if they wish to do so.

A second fascinating question concerns the incorporation of readings of past social, medical and religious mores into the defence. The issue of how we should read past moral stances in the light of the present has always been a complex one for Irish public policy. We should be attentive to how these questions are posed in the courts. In Kearney v. McQuillan the defence argued that possible relevant reasons for Mrs. Kearney’s symphysiotomy could be found if the court took into account that:

[a number of senior Catholic Irish obstetricians, including some Masters of the  National Maternity Hospital were] anti­ caesarean section.  The reason for that was apparently that a woman could only be expected to  undergo a relatively limited number of operations and it was assumed that she  would probably need to have quite a few of them because it was anticipated that  a woman was going to have a lot of children. If doctors were to perform  caesarean sections more or less as required, there would come a point at which  they would have to advise a woman that she should not have any more children and  that would lead to the consequence that she might be tempted to use artificial  contraception or she might even look for sterilisation or some other means of  preventing a pregnancy. This consideration or these thoughts were sufficient to  justify the doctors’ hostility to caesarean section. This led them to be favourable to symphysiotomy… [1]

Ryan J. dismisses this argument, because Mrs. Kearney did not present with ‘feto-pelvic disproportion’, and so it should not have been anticipated that she would have trouble with future vaginal deliveries. The operation was wholly unnecessary, and it could not, therefore, be saved by the fact that it had been performed in accordance with a respectable body of medical opinion. Ryan J. notes that this respectability is ‘mercifully’ a matter of history.  But he does not rule out the possibility that this argument would have had more purchase had Mrs. Kearney’s medical condition been different. This is disturbing because, as Survivors of Symphysiotomy point out, those reputable Irish practitioners who supported symphysiotomy were significantly out of step with wider contemporary medical opinion across the rest of the developed world.

You can read more about the history of symphysiotomy in Ireland in Marie O’Connor’s report Bodily Harm, available here.

[1]  A variation on this argument appears in the  Walsh Draft Report on Symphysiotomy in Ireland which suggests that the use of symphysiotomy in Ireland should be read – to a significant degree – less as matter of doctors attempts to square their practice with personal religious beliefs than as a matter of strategic medical response to ‘the laws of the  time. The law between 1944 and 1984  was very much influenced by the  teachings of the Catholic Church  which  meant that contraception and  sterilisation to prevent  pregnancy w ere illegal and unacceptable .  Symphysiotomy was favoured over caesarean sections as, in the 1940s and  1950s , the safety of repeat caesarean sections was unproven.’ Survivors of Symphysiotomy have repudiated the report in its entirety.

Kearney v McQuillan: Religion, Harm and History.

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