Tort - Professional And Medical Negligence

Front 1

General Principles of Professional Negligence

Back 1

“Profession” was traditionally attached only to the trade of doctors and lawyers; it has grown somewhat, but there is a strong argument against further growth, as professional negligence rules tend to favour the Def.

Rationale behind a separate category of negligence:

(a) the fear of unsubstantiated attack against the professions, which rely heavily on their reputation for survival, and

(b) the ability of the professions to self-regulate.

Generally, negligence principles are applied, but with some refinements.

Front 2

Duty of Care

Back 2

Duty of care can be more restricted, because the courts do not want to replace professional judgment with legal judgment, and anyway, professional relationships are often regulated by contract.

Duty of care can be more extensive, because of third party responsibilities, e.g. to the foetus of a pregnant woman, or to a patient’s spouse. However, these issues are largely untested in this jurisdiction.

Solicitors, however, do owe a duty of care to third parties, e.g. beneficiaries of a will which a client has instructed a solicitor to execute.

Front 3

Standard of Care

Back 3

Basically, the standard of care in a profession is dictated by rules and guidelines within that profession; departing from general approved practice is only unacceptable where a reasonable professional would not have departed from it.

Exception: where the general approved practice is inherently defective, the defence fails.

Front 4

Bolam v. Friern Hospital Management Committee (1957)

Back 4

The standard of care for a professional holds that he is “not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of [fellow practitioners] skilled in that particular art”. Thus, the Def has the defence of “general approved practice”.

Front 5

O’Donovan v. Cork County Council (1967)

Back 5

Facts: numerous visits of the deceased to his GP with headaches for one month; then his GP referred him to A&E; physically examined and an oral history taken; casualty officer decided his condition was not worthy of admission as an in-patient. One day later, he deteriorated rapidly, and died.

Exception laid out – mere repetition of a general approved practice is not sufficient to show that it is not negligent; it may be inherently defective: the court held that if a person giving the matter due consideration would consider a general practice to be deficient, then it provides no defence.

Front 6

Dunne v. National Maternity Hospital (1989)

Back 6

Facts: only one heartbeat was monitored during pregnancy, despite the fact that the mother was pregnant with twins; this led to one twin being delivered with severe brain damage, and the other being delivered dead.

Decision: HC judge directed the jury that deviation from general approved practice constituted negligence; the jury awarded over £1 million.

SC ordered a retrial based on misdirection of the jury, and set out the following rules on standard of care in medical cases:

i. Standard of care = that of a reasonable practitioner of equal specialism and status;

ii. Courts have regard to general approved practice, as adhered to by a substantial number of practitioners;

iii. Mere deviation does not amount to negligence; it must be shown that the reasonable practitioner would not deviate;

iv. An honest difference of opinion cannot lead to one doctor being considered negligent;

v. Following a general approved practice with inherent defects is still negligence.

vi. NB: general deference to the profession indicated, partly because it is not in the public interest that doctors are under frequent threat of unsustainable legal claims.

Front 7

Edwards v. Jenkins (1989)

Back 7

Difficulties to Pls of the Dunne decision were evident in this case, where, despite agreeing with the Pl’s expert on the medical issue, the trial judge did not apply liability, because he deemed the issue a mere difference of opinion.

Front 8

Pyne v. Western Health Board (2005)

Back 8

Pl born with severe brain damage as a result of hypoxia during labour. Two claims of negligence:

(a) the dispensing of a 2nd tablet four hours after the 1st tablet, despite manufacturer recommendation to wait 6-8 hours;

(b) lack of supervision from the nursing staff during labour.

HC held that

(a) because of difference of opinion and lack of proof of an inherently defective practice, there was no negligence in dispensing the tablet;

(b) there was negligence among nursing staff in failing to monitor the labour.

Front 9

Collins v. Mid-Western Health Board (2001)

Back 9

Decision: SC reiterated deference to professionals, but applied O’Donovan exception, finding the system whereby a casualty officer can override a GP’s recommendation inherently deficient.

Problematic decision, because this was not defective professional practice, but rather a defect in the hospital system; correct decision would have been to deem the hospital a negligent employer for failing to operate a safe system of work (?)

Front 10

Maynard v. West Midland RHA (1984)

Back 10

Pl showed symptoms of TB and carcinoma; the latter required a high-risk operation; consultants opted to operate, paralysing the Pl’s vocal chords; it turned out the Pl had TB;

the court found that there were two conflicting bodies of medical research, and refused to attach liability where the Def happened to opt for the body which turned out to be incorrect in this case; found “medical misadventure”.

Front 11

Non-Negligent Medical Mistake

Back 11

Doctors are not liable where they merely make a wrong decision (medical misadventure) as opposed to making a negligently wrong decision (medical negligence). - Maynard v. West Midland RHA (1984)

Front 12

Informed Consent - Definition of the Doctrine

Back 12

Aside from a duty to take reasonable care in diagnosis and treatment, there is a separate duty of care to disclose information to a patient; doctors are under a duty to advise, explain and disclose risks to patients.

This duty is on the treating doctor.

Front 13

Duty to Disclose v. Trespass to Person

Back 13

Because liability is based on non-disclosure of a risk, ICT is distinguished from trespass to the person (battery), which involves an element of intention (i.e. misrepresentation or fraud is used to secure consent – or there is no consent at all).

ICT is firmly rooted in the tort of negligence.

Front 14

Informed Consent - Development of Doctrine: Irish Cases

Back 14

 The major issue here is whether a professional standard should be applied (with deference to the profession) or whether the test should simply be disclosure to the level expected by a reasonable patient. Irish case law is inconclusive.

Academics suggest that, when the SC has an opporunity to clarify this issue, they are likely to find the reasoning of Kearns J. compelling in Geoghegan -v- Harris (2000), and revert to a non-professional negligence test for ICT.

Front 15

Walsh v. Family Planning Services (1992)

Back 15

Pl underwent a vasectomy and underwent a rare but serious injury, the risk of which he had not been informed about.

SC: established that there does exist a duty of care to inform a patient as to risks; the court was split as to the appropriate standard – professional negligence, or ordinary negligence.

However, it was unanimously held that the standard is higher for elective treatment; all known risks must be disclosed, however remote.

The court found the duty to have been discharged in this case.

Front 16

Bolton v. Blackrock Clinic (1994)

Back 16

Pl had bronchial problems and underwent

(a) an elective operation, which led to complications necessitating
(b) a second operation, which cause damage to his larynx nerve.

HC: held that the test for ICT is ordinary negligence, and the Def had discharged the duty, by informing of all risks pre-1st operation, and because the 2nd operation was not elective but necessary, and carried low risk.

SC: reinstated the professional test (more deferential) and upheld the finding.

Front 17

Geoghegan v. Harris (2000)

Back 17

Pl suffered chronic pain due to a bone graft taken from his chin for a dental implant (elective); the Def had had to persuade the Pl to attend consultative sessions to discuss the pros and cons, and had indicated that unforeseen complications could arise, but had not specifically mentioned this complication, which was highly remote.

HC found that, because risk was known, the elective nature of the surgery rendered its remoteness irrelevant; thus the duty had been breached; however,

Pl lost on causation because he failed to establish a link between non-disclosure and the injury (his eagerness showed that he would have taken the operation in any case).

Obiter, Kearns J. followed US and Canadian jurisprudence favouring a general negligence test for ICT, based on the right to self-determination of the patient.

Front 18

Causation Difficulties

Back 18

Proving that he would not have undergone treatment had he known the risk is difficult for the Pl to do. How do the courts establish the causative link?

US approach: objective test (what would the reasonable Pl have done, had he been informed?)

Candian approach: objective test with some subjectivity (what would the reasonable Pl in the position of this Pl have done? – e.g. allows for a Pl who can show general caution in terms of medical treatment).

Kearns J. in Geoghegan approved this Canadian approach; this appears to be the state of Irish law.