Today I will discuss medical negligence following a number of recent high profile cases and inquests.

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1 Tipp FM Legal Slot 29 th May 2012 Medical Negligence John M. Lynch, Principal Today I will discuss medical negligence following a number of recent high profile cases and inquests. Firstly, what is Medical Negligence? Medical negligence is a rapidly expanding area of litigation in Ireland. Medical Negligence is essentially an act or omission by a health care professional which is below the accepted standard of care and which results in injury or death to a patient. Before the 1950s there was no reported case of medical negligence in Ireland. In fact, until 1989 the number of cases was minimal. In 1989 the case of Dunne v The National Maternity Hospital [1989] Irish Reports 91came before the Supreme Court and remains to be the seminal case in medical negligence to the present day. While I discussed this case last week I will now recap on the principles set down by Finlay C.J. for establishing medical negligence: 1. 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. 2. 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

2 like specialisation and skill would have followed had he been taking the ordinary care required from a person of his qualification. 3. 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. 4. 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. 5. It is not for the jury (or for a judge) to decide which of two alternative courses of treatment is in their opinion preferable, but their 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. 6. 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 a general and approved within the meaning of these principles, that issue must in a trial held with the jury be left to the determination of the jury... 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. Though treatment only is referred to in some of the statements of principle, they must apply in identical fashion to questions of diagnosis. What does the reasonable standard of care mean? The reasonable standard of care is the main test for establishing liability in medical negligence cases. Medical professionals must act with ordinary/reasonable care. It is possible that a doctor could be found negligent if s/he misdiagnoses a patient or if the treatment prescribed is unsuccessful. If the diagnosis or treatment were reasonable and there can be no finding of negligence. So, if a patient was misdiagnosed or not cured, this fact alone does not automatically amount to medical negligence if the medical professional passes the ordinary care test i.e. if another medical professional would have acted in the same manner. If the diagnosis and treatment are reasonable and pass the ordinary care test negligence cannot be found. How is the General and Approved Practice decided upon? In Kelly v Crowley (1985) IR 212 Murphy J held that the onus is on the doctor to establish the existence of a practice where s/he defends his/her action by claiming to have been adhering to general and approved practice. However, departing from general and approved practice does not necessarily amount to negligence.

3 It was also established in Dunne that a doctor cannot escape liability for adhering to general and approved practice if the practice had inherent defects which should have been obvious to the practitioner. In 2004 in Gootstein v McGuire and another the defendants disputed liability on the basis of general and approved practice. The Plaintiff s husband had surgery to remove a tumour in his throat. On the second night after the surgery the tracheotomy tube became displaced. By the time the airway passage was established the man was brain dead. The case was brought on the grounds that the surgeon allowed his patient to recover in ICU where there was no-one trained to replace a tracheotomy tube. Johnson J acknowledged that nurses in Ireland are not specially trained to change tubes of this type and that no negligence therefore arose. However, he also noted that this was an emergency situation which required special training. Johnson J found that failure to have a person, nurse or doctor in the ICU who was trained in the replacement of a tracheotomy tube, under the circumstances, was an inherent defect. So the surgeon was found guilty of negligence because had a trained person been present in ICU the deceased would not have died. Describe principle no. 4 - An Honest Difference of Opinion. This defence is only available where there are two approved methods of treating a patient. An honest difference of opinion defence is not available to a doctor when an expert witness testifies that the course adopted was definitely incorrect. If this arises the Court must decide whether or not there was negligence based on the other principles. In 2004 Griffin v Pattern a patient was 17 weeks pregnant and suffered intrauterine death. The obstetrician had four options available to her and decided that the Plaintiff s uterus should be evacuated surgically. Following the operation the patient complained of a discharge and abdominal pain. An ultrasound, which was being carried out due to another problem, showed a piece of foetal bone measuring 5.5cm. This was later removed. The Plaintiff sued on the basis that the doctor had been negligent in undertaking a surgical termination of the pregnancy without having the skill to perform the surgery and using inadequate equipment. Secondly, the Plaintiff claimed the Defendant failed to check that all bone structures had been removed and failed to carry out an ultrasound scan for this purpose. The expert opinion in this case was majorly conflicting. O Donovan J relied on the Supreme Court decision in Dunne which held that 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 the Defendant would follow one course rather than the other had been negligent. On this point he concluded that the doctor was not negligent.

4 Again applying Dunne, O Donovan J said that as there was no reason to doubt the honesty of any of the witnesses the doctor was not negligent. Finally, O Donovan J decided that failure to carry out an ultrasound scan amounted to substandard care on the part of the Defendant. In the Supreme Court Geoghegan J decided that the Defendant was negligent. Importantly, he also held that the principle of honest difference between doctors only arises when it comes to diagnosis and ways of treating a patient and so O Donovan J could have formed the view that the obstetrician did not carry out the evacuation process properly. Healthcare professional s duty of care Every healthcare professional owes a duty of care to their patients. This not only applies to surgeons, doctors, nurses and midwives but also extends to other medical professionals such as dentists, opticians, audiologists and psychiatrists. If you, or a family member, have suffered injury while receiving medical care you may be entitled to take a claim for compensation for medical negligence. How does Medical Negligence occur? Medical negligence can happen because of: Diagnosis i.e. misdiagnosis or delayed diagnosis; Treatment i.e. errors in the medical treatment such as incorrect medication, surgical errors, exposure to infection (MRSA etc) or; Disclosure i.e. failure to inform the patient of the risks of the treatment of procedure. I will now give examples of medical negligence in the context of diagnosis and treatment and disclosure. Diagnosis i.e. misdiagnosis or delayed diagnosis In one case a patient died of a brain haemorrhage. He attended his GP several times before his death complaining of headaches. He was sent to casualty but was not admitted and the next day he was admitted again, unconscious, and died soon after. The High Court found that the GP was negligent because he did not take into account the man s version of events and his detailed accounts of the seriousness of his symptoms. The Supreme Court also found in favour of the plaintiff, but on the grounds that where the casualty officer ignores and does not follow up on a referral letter, it is an inherently defective practice and is negligent.

5 Cancer Misdiagnosis The majority of people who undergo x-rays and blood tests for cancer in Ireland are correctly diagnosed. Early detection is vital as it enables timely medical treatment, and in many cases the patient can be cured. There are unfortunately many cancer sufferers who are misdiagnosed as not having cancer. Our experience in dealing with these cases shows that there are several reasons why a cancer misdiagnosis can occur most of them as a result of human error or a lack of skill. A doctor may not respond appropriately when a patient presents displaying symptoms of cancer- there may be a failure to thoroughly examine or a failure to recognise the symptoms and signs of cancer. There may be a failure to refer to a cancer specialist or a failure to appropriately monitor a patient who has a family history of cancer. In a great number of cases that have come before the Courts it has been shown that laboratory results and scans are often misinterpreted by technicians too frequently. Treatment i.e. errors in the medical treatment such as incorrect medication, surgical errors, exposure to infection (MRSA etc) In another case the Plaintiff s husband had surgery to remove a tumour in his throat. On the second night after the surgery the tracheotomy tube was put out of place. By the time the airway passage was established the man was brain dead. The case was brought on the grounds that the surgeon allowed his patient to recover in ICU where there was no-one trained to replace a tracheotomy tube. The defendants disputed liability on principle of general and approved practice. The Court acknowledged that nurses in Ireland are not specially trained to change tubes of this type and that no negligence therefore arose on this point. However, he also noted that this was an emergency situation which required special training. The Court found that failure to have a person, nurse or doctor in the ICU who was trained in the replacement of a tracheotomy tube, under the circumstances, was an inherent defect. The surgeon was found guilty of negligence because the deceased would not have died if a trained person been present in ICU. Disclosure i.e. failure to inform the patient of the risks of the treatment of procedure An example of a case due to a failure to disclose arose in The Plaintiff underwent bone graft for a dental implant procedure. This resulted in damage to a nerve in his chin and he suffered chronic persistent neuropathetic pain. Before the operation the practitioner told the plaintiff that there was no guarantee that there wouldn t be unforeseen complications. However, he did not disclose to the plaintiff that there was a risk of the chronic neuropathetic pain, which resulted. Expert witnesses said the risk of damaging the nerve was too remote to require disclosure. In the High Court Kenny J held that since the injury was a known and foreseeable consequence of damaging a nerve, the fact that it was unlikely was irrelevant. He adopted the reasonable patient assessment of disclosure, which is used by the courts in America and Canada. This means that the standards of disclosure for medical practitioners should be set by patients instead of set by doctors for doctors. In his judgment Kearns J said that all material risks should be disclosed by doctors and they must consider: the severity of the consequences the frequency of risk the plaintiff s particular circumstances prior to the surgery. The plaintiff failed to recover damages because although the defendant had breached the duty to disclose, the plaintiff had failed to establish a connection between the non-disclosure 1 Geoghegan v Harris (2000) IEHC 129

6 and the injury. The court referred to the evidence given that the Plaintiff had been reluctant to attend pre-operation consultations. This reluctance made all the difference. How would listeners know if they have a claim in Medical Negligence? If you, or a family member, have suffered injury due to the actions or inactions of a medical professional you may be entitled to compensation. You will be able to discuss the facts of your situation, in detail, with a member of our medical negligence team. As experts in the area of medical negligence litigation, we will assess your complaint and assist you in reaching a decision on whether to make the claim or at the very least investigating it further. How is Medical Negligence proven? There are four main steps in proving medical negligence: Duty of Care a legal duty is owed whenever a health care provider or hospital undertakes to treat a patient; Breach of Duty of Care it must be shown that the health care provider in question failed to follow the relevant standard of care; Injury the breach of duty must have caused injury and; Damage Regardless of whether or not the health care provider was negligent, there is no basis for a claim in negligence without damage, be it monetary, physical or emotional. When you have a client who believes s/he has a Medical Negligence case what steps do you, as the solicitor, take to establish a possible case or cause of action? Medical negligence claims, in a similar way to personal injury claims, are made up of a series of hurdles. If you do not clear the first hurdle you cannot move on to the next. To establish a case in medical negligence we need to take these steps: Take up copies of all medical records and check them. In some cases we may even send them to a medical records expert for analysis; Write to the doctor, health care professional or institution we believe is responsible for the injuries caused; Medical experts specialising in the particular area of medicine involved will then be asked to consider whether or not the treatment received was negligent or sub-standard and if so the extent of the damage it caused. If we consider that we have enough evidence to prove a case of medical negligence, then we advise starting court proceedings immediately. Clinical negligence cases can be settled by negotiation without the need to proceed to a full trial but they are rarely resolved without starting court action.

7 Contact Me If you have any questions about medical negligence please contact John M. Lynch, Principal at Lynch Solicitors, on or or Freephone

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