A Drogheda gynaecologist and a hospital yesterday lost their Supreme Court appeal in the case of a young mother who claimed her womb was unnecessarily removed after she gave birth to her only child.
However, the High Court award to the woman of €273,223 damages was reduced by the Supreme Court by €50,000.
Dr Michael Neary and Our Lady of Lourdes Hospital in Drogheda had appealed against the High Court's decision in the case of Ms Alison Gough, (37) of Ardee, Co Louth.
The Supreme Court, by a two-to-one majority, rejected the claim made on behalf of Dr Neary and the hospital that Ms Gough's action had been statute barred (outside the legal time limit set for bringing her action). However, the court decided the High Court's award of €100,000 to Ms Gough for pain and suffering into the future, which was part of her total damages award of €273,223, should be reduced by €50,000.
The outcome was watched by a number of lawyers acting for other women who are alleging Dr Neary performed unnecessary Caesarean hysterectomy operations on them. Ms Gough and a number of Dr Neary's former patients were in court for the decision. Dr Neary did not attend.
In the High Court, Mr Justice Johnson found Dr Neary was negligent in his treatment of Ms Gough at the time of the birth of her only child, a boy, in October 1992. He held that, had Dr Neary carried out certain procedures on Ms Gough, it would not have been necessary to remove her womb shortly after the birth.
He said it was practically unheard of, occurring in the region of one in every 100,000 cases, for a Caesarean hysterectomy to be performed on a young woman where there were no complicating conditions.
Mr Justice Johnson said Ms Gough had been traumatised by the loss of her womb and had suffered from significant depression. The effect had been catastrophic.
Yesterday, two of the Supreme Court judges, Mr Justice Geoghegan and Mr Justice McCracken, rejected the argument by Dr Neary and the hospital that Ms Gough's claim was statute barred. The presiding and dissenting judge, Mr Justice Hardiman, agreed with the appellants that the action was statute barred.
Mr Justice Hardiman said the question of whether, and to what extent, litigation should be permitted in respect of alleged injuries outside the normal statutory period was a weighty one with serious implications for potential plaintiffs, service providers and the community, and one "emphatically" for legislative decision.
Mr Justice Geoghegan, in reducing the amount Ms Gough received for pain and suffering into the future by €50,000, said that, without in any way minimising Ms Gough's injuries and ill-effects, they did not, in his view, "compare with physical injuries of a kind that would attract that kind of damages".
Dealing with the question that the action was statute barred, the judge said the unnecessary hysterectomy was carried out on October 27th, 1992. Ms Gough's action was not begun until December 21st, 1998, more than six years later. Lawyers for the doctor and hospital claimed the claim was barred under the Statute of Limitations 1957.
Mr Justice Geoghegan said Ms Gough did not know, because of false information given to her, that her hysterectomy was unnecessary. She did not learn of this until late 1998 or until there was media coverage about Dr Neary and other hysterectomies he carried out on a number of birthing mothers.
That being so, the plea that the action was statute barred must fail, the judge said. It was only when she discovered the operation was unnecessary that the limitation period started to run.
Mr Justice McCracken said there was no doubt Ms Gough suffered serious psychological trauma from the time she realised what had happened to her. She felt guilty that she should, perhaps, have realised earlier what the true situation was, and might have saved other women from the same fate.
Ms Gough's psychiatrist had given evidence that he expected her to make a full recovery from her clinical depression. In the judge's view, an award of €100,000 for general damages into the future was not sustainable in light of Ms Gough's own psychiatrist's evidence.
In his dissenting judgment, Mr Justice Hardiman said the kernel of the case was that Dr Neary had performed an unnecessary hysterectomy on Ms Gough; made false representations to the effect that the operation was necessary; and used his professional position to prevent her, until the legal time limit had run, from making further inquiries. In his opinion this amounted to concealing her cause of action from her, for which the law provided a remedy, under Section 71 of the 1957 Act (that Ms Gough's cause of action was concealed by fraud).
However, Ms Gough had pursued her remedy along the lines of a 1991 Act, on the position of persons suing over diseases or impairments which were latent in nature or true significance.
That did not extend to circumstances where the disease or impairment was all too painfully patent but some qualitative aspect of it had been concealed. In such circumstances, the law provided a remedy regarding equitable fraud but not otherwise.