Medical Negligence
Basis of Claim
Medical negligence claims may be based on principles of negligence or principles of battery/trespass to the person. In the case of negligence, the ordinary principles apply. The doctor must owe a duty of care which has been breached and thereby causes personal and other injuries.
Trespass is based on different principles. A claim in trespass is based on the principle that the patient did not give consent or informed consent to the particular operation or procedure.
There may also be liability on a medical practitioner’s part for breach of contract. In broad terms, the applicable duties and corresponding liability for breach of contract will be the same as for the tort / civil wrong of negligence.
The rules on contract are more restrictive as to the extent of damages for which compensation may be claimed. The Statute of Limitations periods for commencing a claim. Questions arise as to whether it is possible to sue for negligence where a breach of contract claim is open.
Medical Negligence
Civil liability for medical negligence requires a duty, a breach of duty and damage or loss caused by the breach of duty. The claimant must show that there is a duty to take a particular step or intervention. The claimant must prove that, but for failure to take some other step or intervention, a particular injury would not have happened. He or she must prove the injury.
The traditional test for medical negligence is whether the medical practitioner has acted in accordance with the practice accepted as proper by a responsible body of medical practitioners skilled in that particular art. The defendant must act in accordance with the practice accepted by a responsible practitioner.
A person may claim a certain medical skill although not formally qualified. In this case, he will be held to the standard of competence that he professes, particularly if he induces a third party to act in reliance.
The courts have stressed the risk of being wise after the event. They will make allowances for complicated, highly stressful and emergency situations with multiple possible solutions. They recognise that it is often not reasonable to judge what happened with the benefit of hindsight..
Med Negligence Issues
The issue of causation often arises in negligence cases. There are many cases where there has been negligence, but it cannot be shown that the failure to exercise reasonable care was the operative cause.
A medical practitioner who is a specialist in a particular area must acquire and deploy the ordinary level of skill of specialists in that field. He need not have acquired the highest degree of skill or competence in that field.
As in other Irish professional negligence cases, the fact that a particularly common practice has obvious defects, which would be obvious to a person giving the matter due consideration, may mean the practice is negligent, notwithstanding that it is a common practice.
Dunne Case Test
The most important test for negligence in Ireland is that expounded in the so-called Baby Dunne case. The case involved the birth of twins in the National Maternity Hospital. The hospital claimed that in cases of twins, it was not practice monitoring for the heartbeats of twins. The hospital claimed this was best practice as any other monitoring could be misleading.
The matter went to the Supreme Court and the Chief Justice laid down general principles which have become established in medical negligence cases.
The courts have consistently recognised certain features in the general law of negligence which have particular reference to allegations of negligence made against professional persons in the carrying out of their professional duties. These particular features applicable to allegations of medical negligence have been fully set out by this Court in O’Donovan v. Cork County Council [1967] I.R. 173, which adopted and followed the decision of the former Supreme Court in Daniels v. Heskin [1954] I.R. 73. The reasoning of O’Donovan v. Cork County Council was expressly followed by this Court in Reeves v. Carthy & O’Kelly [1984] I.R. 348. It was again approved and applied to a case of professional negligence by a solicitor in Roche v. Peilow [1985] I.R. 232. There was no argument submitted to us on the hearing of this appeal which constituted any form of challenge to the correctness of the statements of principle thus laid down, although there was controversy concerning their application to the facts of this case. The principles thus laid down related to the issues raised in this case can in this manner be summarised.
- The true test for establishing negligence in diagnosis or treatment on the part of a medical practitioner is whether he has been proved to be guilty of such failure as no medical practitioner of equal specialist or general status and skill would be guilty of if acting with ordinary care.
- If the allegation of negligence against a medical practitioner is based on proof that he deviated from a general and approved practice, that will not establish negligence unless it is also proved that the course he did take was one which no medical practitioner of like specialisation and skill would have followed had he been taking the ordinary care required from a person of his qualifications.
- If a medical practitioner charged with negligence defends his conduct by establishing that he followed a practice which was general, and which was approved of by his colleagues of similar specialisation and skill, he cannot escape liability if in reply the plaintiff establishes that such practice has inherent defects which ought to be obvious to any person giving the matter due consideration.
- An honest difference of opinion between doctors as to which is the better of two ways of treating a patient does not provide any ground for leaving a question to the jury as to whether a person who has followed one course rather than the other has been negligent.
- It is not for a jury (or for a judge) to decide which of two alternative courses of treatment is in their (or his) opinion preferable, but their (or his) function is merely to decide whether the course of treatment followed, on the evidence, complied with the careful conduct of a medical practitioner of like specialisation and skill to that professed by the defendant.
- If there is an issue of fact, the determination of which is necessary for the decision as to whether a particular medical practice is or is not general and approved within the meaning of these principles, that issue must in a trial held with a jury be left to the determination of the jury.
In order to make these general principles readily applicable to the facts of this case, with which I will later be dealing, it is necessary to state further conclusions not expressly referred to in the cases above mentioned. These are:
(a) “General and approved practice” need not be universal but must be approved of and adhered to by a substantial number of reputable practitioners holding the relevant specialist or general qualifications.
(b) Though treatment only is referred to in some of these statements of principle, they must apply in identical fashion to questions of diagnosis.
(c) In an action against a hospital, where allegations are made of negligence against the medical administrators on the basis of a claim that practices and procedures laid down by them for the carrying out of treatment or diagnosis by medical or nursing staff were defective, their conduct is to be tested in accordance with the legal principles which would apply if they had personally carried out such treatment or diagnosis in accordance with such practice or procedure.
In order fully to understand these principles and their application to any particular set of facts, it is, I believe, helpful to set out certain broad parameters which would appear to underline their establishment. The development of medical science and the supreme importance of that development to humanity makes it particularly undesirable and inconsistent with the common good that doctors should be obliged to carry out their professional duties under frequent threat of unsustainable legal claims. The complete dependence of patients on the skill and care of their medical attendants and the gravity from their point of view of a failure in such care, makes it undesirable and unjustifiable to accept as a matter of law a lax or permissive standard of care for the purpose of assessing what is and is not medical negligence. In developing the legal principles outlined and in applying them to the facts of each individual case, the courts must constantly seek to give equal regard to both of these considerations.
The Dunne case was one of the last jury cases in a negligence action, as the Courts Act 1988 provided that such cases should be heard by a judge sitting alone. References to the jury should therefore refer to the judge /court. Although treatment only is referred to in some of the statements of principle, they apply equally to diagnosis.
General and approved practice need not be universal. It must be approved of and adhered to by a substantial number of reputable practitioners holding the specialist or general qualification concerned.
Morrissey Case
Morrissey v Health Service Executive [2020] IESC 6 dealt with failures in cervical screening.
Clarke C.J.
“..care needs to be taken in the use of the term ‘standard of care’. As the trial judge pointed out, that term has a precise legal meaning and represents, at the level of principle, the legal duty which applies in any particular circumstance. However, given that, in clinical negligence cases, a court is dealing with ‘care’ in a medical sense, the phrase ‘standard of care’ might at least colloquially be used to define the appropriate standard by reference to which the approach of a relevant professional to a particular problem should be assessed. To avoid any possible confusion between the term ‘standard of care’ in its precise legal meaning and what might colloquially be called a standard of care in a clinic setting, I will use the term ‘standard of approach’ to mean the standard which, in practice, has been shown to be required of a particular professional in particular circumstances.”
“In substance, the legal standard of care applied in any clinical negligence claims, or indeed other professional negligence claims, requires the court to assess whether no reasonable professional of the type concerned could have carried out their task in the manner which occurred in the case in question. That overall test requires a court to determine what standard a reasonable professional would apply … I consider that the use of the term ‘absolute confidence’ may have created more confusion than clarity. However, it is clear that all of the relevant witnesses agreed that a screener should not give a clear result in respect of a slide unless they had no doubt but that the sample was adequate and did not contain any suspicious material. That standard is not one imposed by the court but rather one which stems from the profession itself. The determination of that standard requires either agreement between the parties or, in the event of disagreement, an assessment by the court of expert evidence.”
“in the manner in which it adopted and promoted CervicalCheck, [ HSE] acted in a way which would lead an informed and reasonable person to assume that the HSE was undertaking responsibility for ensuring that the programme would be conducted in a non-negligent way and, further, … there was nothing in the circumstances of the operation of the programme which would lead a reasonable person to conclude that the HSE had absolved itself of any obligations in respect of the screening part of the programme.”
Health Service Liability
The health services and medical emergency services may have duties of care to respond to emergency calls. This principle has been recognised in England. Failure to answer a 999 call promptly may lead to a finding of negligence. However, to establish liability, it must be shown in accordance with normal principles that there was a breach of duty in the circumstances causing or aggravating an injury.
Where allegations of negligence are made against a hospital on the basis that the practices and procedures laid down by its medical administrators for carrying out treatment by the medical or nursing staff are defective, their conduct is to be tested in accordance with the legal principles which would apply if they personally carried out such treatment or diagnosis in accordance with such practice or procedure.
Opinions on Practice
The above criteria demonstrate that opinion evidence is very important in many medical negligence claims. The claimant and defendant may offer bodies of opinion as to whether particular practices are followed within the above criteria. Ultimately the judge will resolve conflicts of evidence.
If there is a dispute as to whether a particular practice is general and approved, the judge has to determine whether or not this is so having regard to the evidence. Where there is general and approved practice which supports the defendant’s position, then in the absence of an obvious or inherent defect in the practice, the defendant will not be liable for negligence.
As with all claims of negligence, it must be shown that the breach of duty has caused the personal injury or damage. The claimant must prove that the breach of duty complained of caused the damage concerned; that the damage would not have occurred but for the breach. It must be shown that the negligent act or omission caused the injuries and that they would not have occurred but for it.
Schools of Thought
It is said that a medical professional will not be liable for an error of judgment, provided that the error is not unreasonable. However, the error must not be negligent. This will depend on the nature of the error. He or she must act as a competent professional, having regard to the standard he holds himself out as having.
There will commonly be different schools of thought in the medical profession regarding particular courses and treatments. Where there are honest differences of opinion, then there is little or no scope for deciding that one or other factors are better.
However, a doctor may not adhere to out of date methods and techniques. He must keep up to date with developments in the profession. He may not simply apply what he has learned in his college to life.
Developments in Medicine
Continuing education is now a feature of most professions, including the medical professions. Medical professionals must undertake a specified minimum number of training and development courses and equivalent training annually in order to renew their practising certificates.
There is a duty at common law to keep reasonably abreast with modern literature and practices. The extent of this duty will depend on the nature of the doctor’s role and any specialism.
It may not be negligent to fail to read about and apply particular articles or developments which are relatively isolated and have not yet become established. Where, however, particular warnings and information have gained a certain ground in the medical press, the medical professional is likely to be required to keep abreast of it.
If a doctor uses innovative techniques and treatment, issues of negligence may arise. A range of innovative treatments may be used and tried without risk of negligence. However, if the technique goes too far beyond accepted means, there is a risk that it may be categorised as negligence.
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