In June and July 2011 after a 15 day trial, Augustus Cullen Law were successful in their claim for damages on behalf a 33 year old married woman who suffered a third degree tear to her anal sphincter during the delivery of her first child at Our Lady of Lourdes Hospital, Drogheda. The Court held that her injury was inadequately repaired and this caused her to suffer from incontinence. Mr Justice Charleton delivered his Judgment in favour of the Plaintiff on 20 July 2011.
The facts of the case were, on 30 September 2001, the Plaintiff went into spontaneous labour and attended at Our Lady of Lourdes Hospital, Drogheda. Following a failed ventouse, the Plaintiff’s baby was delivered by Neville Barnes forceps. During the forceps delivery, the Plaintiff sustained a third degree tear to her anal sphincter which was recognised by the doctors at the time and it was noted as “superficial fibres of the external anal sphincter gone, same sutured”. The Plaintiff was not advised at the time that she had suffered a third degree tear. During a subsequent pregnancy in 2006, the Plaintiff was advised for the first time by her obstetrician that she had suffered a third degree tear in 2001. The Plaintiff’s symptoms worsened during her second pregnancy. The Defendant denied any negligence and pleaded that her injuries were totally unrelated to the tear and were in fact caused by a condition called Pudendal Neuropathy. Pudendal Neuropathy is a condition associated with prolonged labour particularly the second stage of labour and multiple pregnancies which results in nerve damage from excessive strain. In addition the Defendants pleaded the case was statute barred.
Expert obstetricians on behalf of the Plaintiff argued that having recognised that the Plaintiff suffered a third degree tear, the well-established and best practice regarding the repair of third degree tears should have been followed. The Royal College of Obstetricians and Gynaecologists published guidelines in July 2001 setting out criteria which should be adhered to when repairing an anal sphincter tear which were not followed in the Plaintiff’s case. The guidelines recommend that a repair be done in an operating theatre with adequate lighting, in aseptic conditions with an assistant and under general or regional anaesthesia. Although the Defendant argued that the guidelines were not in place at the time of the injury suffered by the Plaintiff and that they would only have the status of advice, Mr Justice Charleton did not accept that the principles were so new or radical that they required a period of analysis before acceptance. Mr Justice Charleton was of the view that given the importance of the guidelines they should have been in place in the Defendant hospital at the time of delivery of the Plaintiff’s son in October 2001 and failure to follow same amounted to negligence.
On the issue of causation, evidence on behalf of the Plaintiff was that the defect visible on the endo-anal ultrasound scan in the mid-anal canal and low anal canal was the cause of the Plaintiff’s injuries. In his Judgment, Mr Justice Charleton referred to various scientific papers published relating to proper repairs of third degree tears and the results of same which showed an excellent outcome following immediate repairs. On the evidence, Mr Justice Charleton found that had the RCOG guidelines been implemented by the Defendant hospital and followed that a better outcome with a probability of no compromise of anal function would have arisen. The Defendant’s expert colorectal surgeon argued that the Plaintiff’s symptoms were not caused by the tear but were related to Pudendal Neuropathy which is a risk of childbirth with no fault of the Defendant. This theory was emphatically rejected by the trial Judge. The trial Judge accepted the evidence of the Plaintiff’s expert colorectal surgeon.
The Defendant also argued that the Plaintiff’s case was statute barred by reason of the injury occurring in 2001 and the Plaintiff being aware of same from this date. The Plaintiff was subjected to significant cross examination on this issue but the Court found her evidence to be completely accurate and truthful and held that she was not aware that she had sustained a third degree tear until August 2006 and thus the case was not statute barred. Having regard to the nature of her injuries and how successful the Plaintiff was in moderating and controlling her diet, the trial Judge awarded a total of €80,000 for general damages and €7,400 to cover out of pocket expenses. The Plaintiff was also awarded her entire legal costs including the costs of the 15 day legal trial.
29 July 2011