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- 1Medical professional negligence (MN) principles apply to doctors (and dentists) in the discharge of their professional duties to their patients.There are two distinct causes of action: (1) negligent diagnosis/or treatment; and (2) breach of doctrine of informed consent.
- 2DIAGNOSIS AND TREATMENT - Duty and standard of careA doctor owes a duty of care to patients in relation to (i) diagnosis and (ii) treatment. Negligence law applies the professional standard model to all cases of medical diagnosis and it determines the standard of care according to the practice followed within the medical profession.
- 3The rules governing medical negligence in the context of diagnosis and treatment were summarised in the Irish case of Dunne v National Maternity Hospital where it was held that deviation from an approved practice was negligence. The Supreme court set out the relevant duty and standard of care in cases of diagnosis and treatment as follows:Dunne Principle 1:
- The standard is that the practitioner must act with reasonable care expected of a practitioner of equal specialist or general status and skill. - 4Dunne Principle 2: - The courts will have regard to the general approved practice (GAP) which need not be universal but is adhered to by a substantial number of practitioners. GAP operates to exonerate the doctor from negligence. GAP cannot be relied upon by the medical practitioner where that a general or approved practice which is inherently defective and not fit for the particular issue at hand is not a defence. An honest difference of opinion between two ways of treating a patient is not negligence because the doctor followed one course of action.Dunne Principle 3:
- If the doctor deviated from GAP the plaintiff must establish that the actions taken by the doctor 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 qualification.” - 5The Supreme Court stated that they had to consider whether the doctor had been “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”.The Dunne case establishes many hurdles for which the plaintiff must overcome to establish MN, a fact that is also evident in the Irish case of Edwards v Jenkins.
- 6Edwards v Jenkins - a doctor had decided to treat a post natal wound by periodically draining the infection. The plaintiff’s expert disagreed with this course of action and instead advocated the opening of the post natal wound and to treat it aggressively with antibiotics. The judge in this case appeared to support this reasoning, however, felt compelled to conclude that this was simply a divergence in views given that the aggressive method had not been universally accepted as the only and best method to treat such cases.Edwards v Jenkins
- 7Quinn v South Eastern Health Board (2002)Quinn v South Eastern Health Board (2002) – here the plaintiff had an appendectomy when she was 14 following advice she received from her consultant. She developed significant post operative complications which remedial surgery only exasperated. The court accepted evidence from expert witnesses that literature that when the P was advised to undergo remedial surgery she had been deprived of the opportunity of being among the 91% of patients who would recover on conservative treatment and that if she had received such treatment she would have had a 51% chance of successful recovery. The court found the defendant to have been negligent in:
1. Performing the appendectomy; and
2. Recommending remedial surgery too soon; and
3. Failing to discuss the risks and benefits associated with the choice of remedial surgery over conservative surgery. - 8Schuit v Mylotte and Others (2006) – the plaintiff alleged negligence on the part of the consultant obstetrician in performing an extended hysterectomy on her following an abnormal smear test. The defendant wrongly believed that a CT scan had also revealed a tumour and informed the plaintiff of this fact. The plaintiff had a number of complaints – one being that he failed to carry out preliminary tests and for carrying out an irreversible procedure.Three experts gave evidence that he acted correctly and that they would have carried out the same procedure. The HC affirmed the Dunne test is not whether it would have been preferable had the D carried out further and exhaustive investigations before embarking on surgery but whether the P has proved that no obstetrician of like skill, acting with ordinary car would perform the operation carried out by the defendant. The court accepted that there were two bona fides schools of thought as to whether the defendant had acted appropriately in the circumstance. The plaintiff had failed to discharge the onus placed upon her by failing to establish that no obstetrician with like skill acting with ordinary care would have performed the operation.
- 9O’Connor v Murphy.In O’Connor v Murphy liability was imposed where two additional surgeries were required to remedy the original operation which had been negligently conducted. The surgeon was held to be negligent for how the operation to fit a hip joint was performed. Quirke J did not impose liability despite the fact that the court regarded it unacceptable that the surgeon had not disclosed the true purpose of the second operation.
- 10Fitzpatrick v National Maternity HospitalFitzpatrick v National Maternity Hospital – The plaintiff was born with irreversible brain injury as a result of a delay in the delivery of the plaintiff. The defendants had tried to argue that the plaintiff refused to allow her baby to be born in a way which led to the delay in the birth of the plaintiff. However, Herbert J refused this argument and held that the defendants had failed to inform the plaintiff’s mother in sufficiently stark terms of the baby’s condition.
From Fitzpatrick it seems that there is a strong obligation on medical teams to emphasise the emergency at hand or they may be found negligent. - 11Healy v HSEHealy v HSE – Here liability was imposed where it was held that the medical staff had been negligent in providing treatment to the baby who had been born with a malrotation of the intestine. The baby had several operations over a course of a few months and had received excellent care however it was held that these subsequent acts did not absolve the consultant from liability as they did not constitute a novus actus interveniens and it was held that the consultant owed an independent duty to the child. The subsequent actions of the doctors who failed to treat Martin would not constitute novus actus internviens for the original surgeon.
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- Karteikarten am Ohne Titel, erstellt von Karen McGrory am 24/09/2018.
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