Flashcards
PROFESSIONAL NEGLIGENCE - Flashcards
Cards in this deck (36)
- 1Professional NegligenceBolan v Friern Hospital - ‘Where you
get a situation which involves the use
of some special skill or competence ...
The test is the standard of the
ordinary skilled man exercising and profession to have that special skill.’ - 2What is a "Profession"?Kelly v St Laurence Hospital - traditionally, nurses were not a distinctive enough profession...
Barlow v Minister for Communication - to do with mussel-seed farming - essentially if the task is complicated, the court will apply professional negligence standards. - 3The Required StandardThe established principle is that of "customary practice" of others in the profession.
Customary practice will be overlooked by the courts if there is an inherent defect in that practice. - 4Required Standard (cont.)O'Donovan v Cork County Council - medical practitioner cannot be held negligent if he honours general and approved practice in the situation with which he is faced -- this is limited to practice without inherent defects.
Roche v Peilow - “To some extent … the universality of a particular practice adopted by an entire profession must itself be evidence that it is not a practice which has inherent defects which ought to be obvious to any person giving the matter due consideration”. - 5Professional Negligence - 1. DoctorsDaniels v Heskin - “A medical practitioner is liable for injury caused to another person to whom he owes a duty to take care if he fails to possess that amount of skill which is usual in his profession or if he neglects to use the skill which he possess or the necessary degree of care demanded or professed”
- 6Standard of Care -Dunne (infant) v National Maternity Ward
FINLAY CJ :- “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.”
The key principles established in this case are:
1. Was the doctor guilty of such failure that no other doctor of equal standing and skill would have made if taking ordinary care.
2. If the allegation is that the medical practitioner deviated from general and approved practice then he is not negligent unless the action was one no other doctor of like specialisation and skill would have taken using ordinary care.
3. No defence to say conduct was in accordance with customary practice especially if it can be shown it had inherent and obvious defects. - 7Standard of Care (cont.)Dunne (cont.)
4. Not negligent if the course taken complied with the careful conduct of a doctor of like skill and expertise.
5. An honest difference of opinion between doctors as to which of two ways of treating a patient does not provide any grounds for leaving it to a jury as to whether a person has followed one course rather than another has been negligent.
6. If there is an issue of fact to be determined to decide if a practice is one of general application then that fact should be left to the jury.
”General and approved practice” need not be universal but it must be approved of and adhered to by a substantial number of reputable practitioners holding relevant specialist or general qualifications. - 8Standard of Care (cont.)Morrissey v HSE [2020] - summarises Dunne test -
The standard of approach of a medical professional is to apply a standard appropriate to a person of equal specialist or general status acting with ordinary care. A failure to act in that way will amount to negligence. - 9Errors of Judgment - Doctor not liable where error of judgment is made as long as the error was not an unreasonable one. - Allows doctors to focus on helping patients, not on litigation.Daniels v Heskin - breaking a needle was not negligent -
Edwards v Southern Health Board - evidence showed another course of treatment was open to defendant and they chose not to take it - this was not negligent - it was generally approved practice - no defects. - 10Different Schools of ThoughtMaynard v West Midlands - court's preference for one body of opinion over another was no basis for conclusion of negligence.
O'Donovan v Cork County Council - in the presence of a difference of opinion, it is not open to a jury to hold that it is negligent to accept on view over another. - 11Different Schools of ThoughtQuinn v South Easter Health Board - patient autonomy - plaintiff suffered complications from appendix operation - did not advise her of conservative treatment - court upheld her claim - doctors are trained professionals but patients have autonomy - constitutional right to bodily integrity.
- 12Professional Negligence - 2. Medical PeopleDaniels v Heskin - O’FLAHERTY J.:- ‘Where there is a question of elective surgery which is not essential to the health or bodily well being, if there is a risk, the exercise of possible consequences should be explained in the clearest language to the plaintiff.’
- 13Standard of Care - Disclosure and Informed Consent• [1] Professional Standard Approach: The UK - Professional’s point of view;
requires doctors to disclose things that a health professional, practising as a specialist in that field, would disclose in the same or similar circumstances.
[2] Reasonable Patient Approach: USA & Canada -Patient's point of view;
requires disclosure of all facts, risks, and alternatives that a reasonable person in the patient's situation would consider important, in deciding to have, or not have, a recommended treatment. - 14Disclosure and Informed Consent - Irish PositionWalsh v Family Planning Services - long-term side effects following a vasectomy - told that it was painless and safe - no general and approved practice of warning patients of this side-effect from vasectomy - Court disagreed on the test to be applied between professional standard and reasonable patient.
- 15Irish Position (cont.)Geoghegan v Harris [2000] - teeth missing so got dental implants - nerves damaged in procedure - was assured there would be no pain at all - failed to be told that it could result in chronic pain - reasonable patient test approved - the nerve damage was a known consequence - although remote...
- 16Irish Position - Geoghegan v Harris (cont.)The duty on a Doctor requires practitioners to give a warning of known complications because
“the reasonable man, entitled as he must be to full information of material risks, does not have impossible expectations nor does he seek to impose impossible standards. He does not invoke only the wisdom of hindsight if things go wrong. He must be taken as needing medical practitioners to deliver on their medical expertise without excessive restraint or gross limitation on their ability to do so” - 17The Irish Position (cont.)The position therefore appears to be that in elective surgery, the patient must be given full disclosure of all risks and side-effects - this is because the patient does not NEED the procedure, so side effects are more damaging.
Greater desire to acknowledge patient autonomy. - 18Post-Geoghegan decisionsFitzpatrick v White - born with squint so underwent surgery which went well so had more surgery which caused double vision and headaches and a worse squint
SUPREME COURT:- “If there is a significant risk which would affect the judgment of a reasonable patient, then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk. - 19Post-Geoghegan DecisionsCottstain v Maguire - important to have properly constituted roster - patient died as nobody was on call to fix a collapsed tracheotomy tube - not having a doctor trained to do so was an inherent defect in practice - defendant liable.
- 20Shuit v Mylotteradical hysterectomy carried out on plaintiff even though this was not seen as necessary at the time. Further investigation would have proved this, but was not carried out. It was admitted by D that he would not have done it if he had the info he has now then - it was for the plaintiff to prove that no other obstetrician would do what he did in the circumstances.
- 21Hegarty v Mercy Hospital [2011]Duty on hospitals to convey to patients accurate and up to date information in respect of their condition and in respect of significant developments.
Information must be conveyed in a way the plaintiff will understand. - 22McMahon v Mid Western Health BoardLarynx was removed when cancerous lesion was discovered - found out that targeted radiotherapy would have removed it - claimed negligent treatment - failure to discuss treatment options - HSE accepted liability for negligence and misdiagnosis.
- 23Helen Malone v St Luke's GeneralDoctor suggested waiting for surgery - surgery postponed - patient died of sepsis and multiple organ failure - standard of care was below an acceptable standard.
- 24Montgomery v Lanarkshire Health Boardfailure to disclosure chance of harm to child in case of natural birth where mother had diabetes - child suffered lifelong harm - doctor said she didn't inform as if she had, all mothers would want a c-section in the same cases - plaintiff awarded over £5million.
Test in UK is now the reasonable patient test - not the doctor knows best test - 25Professional Negligence - 3. SolicitorsFinlay v Murtagh - HENCHY J.:- addressed the issue of solicitor’s liability in professional negligence and extended the duty owed to potential third parties who are effected by the actions of the solicitor.
He said: ‘The duty extends to any person for whom he undertakes to act professionally without reward and to those…with whom he has made no arrangement to act but who as he knows or ought to know will be relying on his professional care and skill. ’ - 26Beneficiaries Under a WillWall v Hegarty - FACTS:- solicitor retained by the deceased, failed to ensure the will had been properly attested and as a result the intended beneficiary to the will was unable to claim a substantial sum of money. The beneficiary sued the solicitor for failing in his duty to the testator and by extension causing foreseeable damage to them.
DECISION:- The court accepted that the situation created a duty of care to 3rd parties and that particularly in respect of a will, all beneficiaries are owed a duty of care. - 27Areas of Liability1. Giving of Advice
2. Conduct of Litigation
3. Conduct of Conveyances and Other Transactions - 281. Giving of AdviceMcMahon & Binchy - A solicitor who gives incorrect advice on “a point of common occurrence where the law is clear” will be liable.
If law is unclear, or it is an uncommon occurrence, you will be absolved by liability. - 29Giving of Advice (cont.)Rojack v Taylor - solicitor must only do what he is hired to do - retained to administer a will - did not inform of ability to acquire greater provision - high court found that the solicitor did what he was engaged to do.
- 30Giving of Advice (cont.)O'Carroll v Diamond - solicitor advised plaintiff to take independent legal advice - she signed without doing so - the defendant was held to be under an obligation to actively encourage the plaintiff to seek advice - he discharged this duty.
Depending on the circumstances, he may have to push the issue [Hardiman J] - 312. Standard of Care in LitigationLopes v Walker - SUPREME COURT:- Found a solicitor negligent in allowing a claim to proceed in the Circuit Court. The Solicitor had not sought second opinions on medical evidence that excluded some aspects of the claim and had not paid enough attention or adequately pursued a loss of earnings aspect of the claim. Counsel’s advice had concurred with the Solicitor’s but must have been influenced by the view taken by the Solicitor. While damages awarded by the Trial Judge in the substantive action were within the Circuit Court, that was as much to do with how the case was presented and managed in the first place rather than confirming that solicitor and counsel were correct to keep the case in the Circuit Court.
- 323. Standard of Care in Conveyancing and Other MattersDoran v Delaney - asked if there was any litigation - knew of the litigation - client told them it was sorted - information given was incorrect - criteria set -
1. Solicitor assumed responsibility for advice or information furnished to a third party;
2. Solicitor let it be known, expressly or impliedly, that he has the requisite skill or knowledge to give the advice or information;
3. The third party relied on the advice or information; and,
4. Solicitor must have been aware that the third party was likely so to rely. - 33(cont.)Carr-Glynn v Frearsons - FACTS:- the defendant solicitor admitted uncertainty as to whether the will as was would be effective and asked the deceased testatrix to clarify matters before they executed the will. Over three years passed and the lady died without having verified the information with the solicitor.
COURT:- The House of Lords distinguished White v Jones because the testatrix had assumed the duty of care in this instance, but the law lords were critical of the failure of the solicitor to send a letter of reminder. - 34Professional Negligence - 4. BarristersHistorical levels of barrister immunity - Rondel v Worsley and Saif Ali v Sydney Smith Mitch.
This changed in the 21st century...
Hall v Simons [2002] - barrister immunity was an anomaly from other professions - very difficult in any case to prove that advocacy was inadequate.
No longer in public interest for barrister immunity. - 35(cont.) Other Jurisdictions -Canada - Demarco - No barrister immunity. No evidence of open floodgates.
NZ - Lai v Chamberlains - No Barrister immunity
Australia has barrister immunity - D'Orta v Victorian Legal Aid - 36(cont.) Irish PositionBehan v McGinley [2008] - the court for the purposes of this application will assume that barristers such as those implicated in the within proceedings do not enjoy a blanket immunity from suit and can be sued for negligence in relation to their management of litigation on behalf of their clients either in respect of their preparatory work or indeed in respect of their management of the trial itself.”
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- FE 1 Tort Law Flashcards on PROFESSIONAL NEGLIGENCE - Flashcards, created by Morgan Moriarty on 04/08/2020.
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