Med Neg Issues
Basic Principles
A medical professional must meet the standards of reasonable and competent members of the profession. He or she will not be liable just because the treatment does not succeed. In many cases, there may be differences of opinion as to what is the appropriate treatment.
The law accepts that professions may apply their own standards provided they are not patently defective. Where a standard of care is accepted by professionals in general, meeting that standard is unlikely to constitute negligence. Reasonable differences of opinion are allowed between practitioners.
Where a treatment has obvious defects and risks, the doctor may be liable, notwithstanding that it adopts a widely accepted treatment. Once the treatment is supported by a substantial body of medical practitioners and lacks inherent defects, it is unlikely to be negligent.
Specialists v Generalists
As with other professions and occupations, some medical professionals will be general practitioners, and others will be specialists. The general practitioner will be expected to refer some matters to a specialist or to hospital treatment. This is an important part of his role.
The general practitioner must distinguish between cases with which he can deal himself and those which he must refer to others. If there are matters or symptoms that are complex or uncertain, which call for specialist attention, then the duty of care will require that he makes the necessary reference.
Where a person holds himself out as a particular specialist medical professional or practitioner but, in fact, lacks the requisite skill, he will be held to the standards for which he has held himself out. In some cases, the person may be liable for fraudulent misrepresentation.
Vicarious Liability
The Health Services Executive and other corporate entities such as hospitals and clinics, may be vicariously liable for their medical staff. Hospitals are generally responsible vicariously for the negligent acts of their employee in the course of their work.
Hospitals that employ doctors may be liable on this basis. A hospital will not generally be vicariously liable for negligence on the part of an independent consultant on its premises.
Medical practitioners who themselves employ other staff may be thereby liable for the negligence of their staff.
Institutional Negligence
In some cases, negligence may lay at the organisational and administrative levels. The institution itself may be held liable jointly or exclusively where the particular injuries are attributable to the failures at the institutional level. The hospital’s systems may breach the duty of care to the patient.
Byrne v Ryan [2007] I.E.H.C. 2007
Kelly J. indicated that the hospital might have a primary, as well as vicarious, liability towards its patients.
“ health authority which so conducts its hospital that it fails to provide doctors of sufficient skill and experience to give the treatment offered at the hospital may be directly liable in negligence to the patient”.
“This quotation is cited as being illustrative of cases where a hospital may be found to have been in breach of its own primary duty of care to its patients. It is suggested that on the evidence in the present case no issue arises as to any alleged breach by the hospital of its primary responsibility to its patient and the only possible basis for a finding of liability against it is on the basis of vicarious liability in respect of the performance of the sterilisation. This is not correct. There was in my view a breach of the hospital’s primary duty to inform the plaintiff of the failure of the sterilisation so the question of vicarious liability does not arise on that issue. On the question of the failed sterilisation there was also in my view a breach of primary duty given the fact that the plaintiff was a public patient referred to the hospital and not to an individual consultant. Fortification for this view can also be had by reference to those parts of Dr. Murray’s contract which I have emphasised and in particular clause 5.3, 6.4.2 and 6.4.3 of the memorandum of agreement. Lest however I am wrong in this view I will deal with the question of vicarious responsibility for the failed operation.”
Syptoms & Diagnosis
The doctor may not be in the presence of the patient, who may have communicated by telephone with a verbal description of symptoms. He or she may be given a general description of symptoms, and he or she may be required to meet, test and/ or seek further information. The doctor must make a judgment as to whether further action should be taken.
Many negligence cases will turn on mistake diagnosis. Standards of negligence do not require medical practitioners to make a correct diagnosis in all cases. Provided it is reasonable in the circumstances, it is unlikely to fail the requisite duty of care.
Difficult questions may arise in relation to the required response to particular symptoms. Many difficulties will arise from failures of communication with the patient. A patient may not articulate his symptoms in sufficient detail to allow a proper diagnosis. Circumstances may require an examination.
Information may be received from others, such as relatives, in relation to symptoms and conditions. In some cases, the doctor may be negligent in ignoring credible descriptions by spouses and relatives, even by the patient himself is more reticent.
Emergency
Where a patient is contacted by a doctor in circumstances where the doctor cannot make an appointment to see him or accept the patient, a duty of care is unlikely to arise. If an emergency arises and the doctor is in a position to help, then a duty may be owed.
Where the patient is a GMS patient of the doctor, there may be a contractual obligation to treat him or her. He need not necessarily see the patient immediately, but he must exercise judgment as to whether and when the patient should be seen.
If a doctor comes on an accident, then no common law duty of care will arise. If he in fact, intervenes, he may assume a duty of care. The Civil Liability Act 2011 provides for protection for a so-called “good Samaritan” in these circumstances. See the separate chapters on this topic.
Wrongful Life
A number of cases have been taken on the basis of wrongful pregnancy following sterilisation operations, the court have tended to limit the amount of damages available to the pain and distress and the attendant cost of childbirth. They have not awarded compensation for the cost of bringing up the child on public policy grounds.
Causation
In many medical negligence cases, causation is an issue. The general principles applicable to causation in the law of court apply. See the separate chapter on causation.
In many different cases, it may be alleged that a failure to a particular treatment or failure to reach a particular standard of care in diagnosis or treatment caused a particular element. In many cases, there may be no apparent causal link. The matter would require resolution by expert evidence, on which the court will make a judgment on the balance of probabilities.
More complex issues of causation arise where a particular treatment would have given a patient a particular chance of recovery that is otherwise lost. If a claimant can show that a chance of recovery in excess of 50 percent is lost, damages may be awarded.
The UK courts have held that in cases of less 50 percent probability, no award is made. The Irish courts appear to take a more liberal approach. Compensation may be allowed for a loss or chance of recovery, even if it is less than 50 percent.
Res Ipsa Loquitur
The principle of res ipsa loquitor may apply in some medical negligence cases. This principle provides that where something happens which should not in the normal course of events happened without negligence, a presumption of negligence may arise.
If for example, the claimant was healthy at the time of a given treatment of a routine nature with no risks, then if some unexpected adverse event occurs while under the control of the defendant medical practitioner, negligence may be presumed until sufficient evidence to the contrary is given.
Remoteness
A linked concept to causation is that of remoteness. Some consequences will be caused by negligence but may be deemed too remote to attract compensation. As with negligence generally, the question turns on the concept of hypothetical foreseeability.
Loss may be too remote because it is not foreseeable.
Mitigation
Declining to undergo surgery or other medical treatment and the duty to mitigate damage
In B O’K v Minister for Health and Children [2019] IEHC 457 the claimant under a hepatitis compensation scheme could have his or her award reduced due to failure to mitigate loss and damage. The appellant had refused certain treatment which increased risks of certain complications developing including those that did develop.
“… clear from this [statutory] wording that in order to be deemed contributory negligence and thus to result in a reduction of damages the failure to mitigate loss must be a failure which is either careless or negligent. It follows that before any question of a reduction in damages arises the court is required to make a determination as to whether or not there was a failure to mitigate loss and if so whether such was negligent or careless; all are essential ingredients. The suggestion that a failure to mitigate loss may be taken into account by the tribunal or the court divorced from the concept of contributory negligence is misconceived in law.”
The judge cited an earlier case in which Murphy J said
“… the refusal to accept that treatment to my mind is unreasonable. Nobody is bound to undergo experimental or unusual remedies for the illness or disability imposed upon them by a wrongdoer, but they are bound to undertake reasonable steps to procure their recovery. I appreciate [the plaintiff]’s concern about the stigma of attending a psychiatrist hospital, or indeed attending a psychiatrist. It is part, or perhaps a feature of our tradition and culture, that people dislike going to such hospitals or attending such specialists, whereas in other countries it is, I think, more notorious that distinguished and wealthy people, film stars amongst them, wouldn’t dream of doing anything without attending frequently their retained psychiatrist, and that there is no disgrace involved in that, but it does seem to me, whoever it is done by, … that [the plaintiff] really must, in her own interests and in fairness to the defendants, and should before now have, undergone a treatment which doesn’t seem to involve any particular degree of pain, in the sense of what an operative or surgical treatment might well involve. I don’t think it is open to the plaintiff to say: ‘I am disabled. I will continue to go about on crutches unable to walk, and unable to work, and unable to enjoy the amenities of life, even though there is a treatment available to me which would take a year and has a success rate of over 85%.’ I don’t think that is acting reasonably.”
“In circumstances where the Oireachtas quite clearly decided to remove the necessity to address issues of liability it is hardly surprising that there is no express provision in the 1997 to 2006 Acts which allows for a reduction in compensation for contributory negligence of whatever kind not to mention a failure to mitigate loss …
I am quite satisfied that where one of the fundamental features and attributes of the scheme is to remove questions of legal liability it would be wholly contrary to the policy underlying the scheme as well as the object for which it was established and the mischief which it seeks to redress, were s. 5 (1) to be construed as a back door through which the Minister or the Tribunal could introduce questions of legal liability to reduce awards to the victims of HCV or HIV infection.
Furthermore, to construe the section in the way suggested would offend against the approach to construction of the provision, contained as it is in a ‘redress statute’, mandated by the Supreme Court in CM v. Minister for Health, and recently applied by this Court in AC v. Minister for Health. Moreover, it would be contrary to the manifest legislative intention apparent from the express provisions of the 1997 to 2006 Acts that claimants would not have to concern themselves with questions of legal liability or with the apportionment of fault which would necessarily arise from issues of contributory negligence.”
Even if contributory negligence was proper matter to consider, the judge did not find the conduct to be a negligent failure to mitigate damages
“Declining the treatment then available, where the known side effects were truly awful, where she was terrified to subject herself to treatment, where there was no guarantee of a successful outcome or indeed even improvement, and where she felt her life had already been devastated at what she perceived to be the hands of the medical profession, the Appellant’s behaviour was entirely understandable.”
References and Sources
Irish Books
Tully Tort Law in Ireland 2014
McMahon & Binchy Law of Torts 4ed 2013
McMahon & Binchy Case Book on the Law of Torts 3ed 2005
Connolly Tort Nutshell 2ed 2009
Quill Torts in Ireland 4ed 2014
Fahey Irish Tort Legislation 2015
Healy Principles of Irish Torts 2006
EU and UK Texts
Lunney, M. and K. Oliphant Tort law: text and materials. 5ed 2013
Peel, Edwin, Goudcamp, James Winfield and Jolowicz on tort 19 ed 2014
Horsey, K. and E. Rackley Tort law. 6ed edition 2019
Deakin, S., A. Johnson and B. Markesinis Markesinis and Deakin’s tort law 7ed 2012
Giliker, P. Tort 5ed 2014
McBride, N.J. and R. Bagshaw Tort law 6ed 2018
Steele, J. Tort law: text, cases and materials 4ed 2017
O’Sullivan, J., J. Morgan, S. Tofaris, M. Matthews and D. Howarth Hepple and Matthews’ tort: cases and materials 7ed 2015
Horsey, H. and E. Rackley Kidner’s casebook on torts 13ed 2015
Clerk & Lindsell on Torts 22ed 2019
Charlesworth & Percy on Negligence 14ed 2019