MEDICAL NEGLIGENCE: AN INTRODUCTION TO PRACTICE AND PROCEDURE EMMA SYNNOTT BL DECEMBER

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1 MEDICAL NEGLIGENCE: AN INTRODUCTION TO PRACTICE AND PROCEDURE EMMA SYNNOTT BL DECEMBER 2014 These slides do not constitute legal advice

2 AIMS: Focus on practice and procedure not substantive law Major procedural difficulties in med neg actions: before summons is served Overview of steps to get med neg action off the ground Examine common procedural pitfalls

3 PLAN 1. Dunne Principles 2. Establishing liability and causation: need for expert evidence 3. Taking up the records and briefing medical experts 4. Statutes of Limitation & PIAB: Issuing proceedings on a protective basis 5. Who to sue: identifying the correct defendants 6. Statutes of Limitation, minors, wards & delay 7. Renewing the Summons 8. Insolvent defendants and insurers in med neg actions

4 ESTABLISHING NEGLIGENCE In general in med neg no issue as to duty of care Principle negligence issue standard of care Dunne v National Maternity Hospital & anor [1989] IR 91: On the balance of probabilities, the treating doctor followed a course of action that no no medical practitioner of like specialisation and skill would have followed, had that medical practitioner been taking the ordinary care required from a person of his qualifications Difficulties in running med neg actions stem from this standard of care

5 Dunne Principles Finlay CJ: "The principles thus laid down can in this manner be summarized: 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. 1. 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.

6 Dunne Principles Cont. 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.

7 Dunne Principles Cont. 5. 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. 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 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.

8 Dunne Principles Cont. [I]t is necessary to state further conclusions These are: (a) (b) (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. Though treatment only is referred to in some of these statements of principle, they must apply in identical fashion to questions of diagnosis. 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.

9 Dunne Principles Cont 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.

10 High Burden of Proof Not sufficient to: Demonstrate that a Plaintiff suffered an outcome that was less than optimal Demonstrate that an operation did not proceed as planned, or Demonstrate that after an operation a Plaintiff s condition was worse than it was before the operation Demonstrate that, of two alternative courses of action open to a medical practitioner, the medical practitioner took the less preferable course of action, if both courses of action are deemed reasonable Must establish that no reasonable medical practitioner would have taken the course of action that was taken

11 Advising on the strength of a case Legal practitioners do not have the expertise to assess the strength of a potential med neg claim Cannot be assessed without obtaining opinion of expert witness Results in significant outlay for client before any assessment of likelihood of success can be provided to the client Risk of not recovering that outlay or legal costs Vital that client understands this risk when obtaining reports

12 Obtaining an expert report Required because solicitor and counsel cannot advise without expert evidence BUT also required by the courts if med neg claim is to be pursued Without supportive expert evidence med neg claim is an abuse of process and professional misconduct Cannot be pursued without this evidence

13 Reidy v National Maternity Hospital (High Court Unreported Judgment July 31, 1997) Per Barr J: It is irresponsible and an abuse of the process of the court to launch a professional negligence action against institutions such as hospitals and professional personnel without first ascertaining that there are reasonable grounds for so doing. Initiation and prosecution of an action in negligence on behalf of [a] plaintiff against [a] hospital necessarily requires appropriate expert advice to support it.

14 Cooke v Cronin & Neary (Unreported Judgment, Supreme Court, July 14, 1999 (Denham, Keane and Lynch JJ)) Denham J approved dicta of Barr J in Reidy: While bearing in mind the important right of access to the Courts, I am satisfied that these statements of law are correct. To issue proceedings alleging professional negligence puts an individual in a situation where for professional or practice reasons to have the case proceed in open Court may be perceived and feared by that professional as being detrimental to his professional reputation and practice. This fear should not be utilized by unprofessional conduct Per Lynch J: In all cases of alleged negligence on the part of a qualified professional person in carrying out his professional duties there should be some credible evidence to support the plaintiff s case before such an action is commenced. (emphasis added)

15 Flynn v Bon Secours Health Systems Ltd [2014] IEHC 87 Plaintiff was pursuing 3 related med neg cases in the CC, against Bons Secours, Blackrock Clinic and the Mater Private Plaintiff had been told by a succession of radiologists that CT scans of his palete were normal Plaintiff was convinced they were not and instituted proceedings representing himself and lacked financial means As part of settlement of proceedings Bons Secour agree to commission an expert report Expert report of Professor Nigel Hoggard concluded CT scans showed a possible fracture of the hamulus Plaintiff decided not to withdraw proceedings

16 Flynn v Bon Secours Health Systems Ltd [2014] IEHC 87 Preliminary issue: what expert medical evidence the Plaintiff intended to adduce at trial Stated he did not intend to induce any had not been able to get Professor Hoggard to testify and could not afford to commission report Struck out by the CC for failure to produce supportive expert report The issue appealed to the HC: should the plaintiffs actions for medical negligence against all three hospitals be stayed permanently in circumstances where the plaintiff is unable to produce a medical report of his own, even though at least one of the defendants is in possession of a report which, to some degree, supports some of the plaintiff's factual contentions?

17 Flynn v Bon Secours Health Systems Ltd [2014] IEHC 87 Hogan J, in allowing the appeal on certain terms, considered the following factors relevant: Action is against the hospitals and not the doctors personally It is clear from Professor Hoggarts report that that the plaintiff s complaint is, at least to some degree, well founded Permanent stay is essentially a dismissal and was premature in the circumstances While defendants have a right to have matter dealt with speedily, this must be balanced with the plaintiff s constitutional right of access to the courts Plaintiff s personal and professional circumstances should be taken into account

18 Flynn v Bon Secours Health Systems Ltd [2014] IEHC 87 Per Hogan J: 29. In these circumstances I will allow the appeal in part, but only upon certain terms. I think it clear that the plaintiff has an appropriate basis for suing the three defendant hospitals, so that the first limb of the Cooke test is satisfied. The plaintiff must, however, be given a fair opportunity to satisfy the second limb of that test by leading evidence from a medical expert. It will be a matter for the plaintiff to obtain a report from such an expert and to have that expert give direct evidence on his behalf. That opportunity cannot, however, be openended, since the defendants are also entitled to have the matter determined within a reasonable time. 30. If, therefore, the plaintiff wishes to proceed with these proceedings, I will accordingly require him to obtain such a report within twelve months of today's date and to supply a copy of same to the defendant's solicitors. In the event that such a report is not supplied, then the defendants will be entitled to apply by motion to the Circuit Court sitting at Cork to have the action dismissed.

19 Causation In med neg, establishing causation is usually difficult Distinguishing between injuries caused by negligence and injuries caused by the underlying medical issues Negligence & negative outcome is not sufficient if negligence did not cause negative outcome Again, in general legal practitioners will not have the expertise to evaluate causation must be addressed in expert report

20 Loss of chance Further complication in med neg actions, in particular failure to diagnose Frequently, negligence will not cause a definite negative outcome, but will prevent plaintiff from availing of a better treatment, or availing of that treatment earlier E.G. delayed cancer diagnosis Can the plaintiff recover for this lost chance?

21 UK - No Gregg v Scott [2005] UKHL 2 House of Lords held by a 3-2 majority that plaintiffs are not entitled to recover for loss of chance in these circumstances Held that the plaintiff could not recover damages for injuries that would probably have occurred even with proper care, despite it being proven that the negligence increased the likelihood of the injuries occurring and/or reduced the chance of a cure. This decision was made largely on policy grounds.

22 Ireland - Yes Philp v Ryan [2004] IESC 105 Per Fennelly J for a unanimous SC I should say that it seems to me to be contrary to instinct and logic that a plaintiff should not be entitled to be compensated for the fact that due to the negligent diagnosis of his medical condition he had been deprived of appropriate medical advice and the consequent opportunity to avao; of treatment which might improve his condition, I can identify no contrary principle of law or justice. It is common place that allowance is made in awards and in settlements for the risk that an injured plaintiff may in future develop arthritis in an injured joint. The risk may be high or low 15% risk is often mentioned but damages are paid. I cannot agree that this is in any way different from what is sought in the present case. It does not matter that the damage suffered by the plaintiff consists of the loss of an opportunity to avail of treatment. It might with equal logic be described as an increased risk of shorter life expectancy. It seems to me as illogical to award damages fro a probable future injury as if it were a certainty, as to withhold them where the risk is low on the basis it will not happen at all.

23 Advising clients RE expert report 1. Report is necessary if proceedings are to issue legal practitioners cannot assess strength of case without expert evidence 2. Expensive & no guarantees 3. May need more than one report 4. Even where injuries are grave and outcome unexpected, experts may conclude no negligence 5. If conclusion is no negligence, expenditure is not recoverable 6. Experts may conclude negligence, but no causation 7. If conclusion is negligence did not cause any injury, expenditure is not recoverable 8. Experts may be supportive on negligence & causation, and case can still be lost defence will brief experts too

24 Taking up medical records Vital to ensure all relevant medical records are taken up: 1. Expert will require full picture 1. Necessary to identify all potential defendants Should be done immediately medical records will be necessary for counsel to advise, to obtain expert reports, or if issuing protective summons

25 Right to Medical Records Well established that doctors who create records, own them Subject to patient s right of access: Common law Freedom of Information Act 1997 (public hospitals) Data Protection Act 1988 (private hospitals and GPs) Discovery process

26 Right to Medical Records Medical Council s Guide to Ethical Conduct and Behaviour 6 th ed. (Dublin, 2004), at Article 4(10): Patients are entitled to receive a copy of their own medical records, provided it does not put their health (or the health of others) at risk. ICGP Guide to Data Protection, pg 16: Under data protection legislation, patients are entitled to get a copy of their medical records whether these are held on computer or on a manual record system. Patiesnts wishing to do so are required to submit the request to the data controller (GP or practice manager) in writing. They are not required to give a reason for the request. A fee of no greater than 6.35 can be charged for this by the practice and the records must be provided to the patient within 40 days

27 Exceptions to right of access Where the disclosure of the record to the parties would be likely to cause serious harm to the physical or mental health of the data subject. Set out in DP Act, FOI Act & common law Typically would apply in relation psychiatric treatment Acts only allow for the portion of the records that would cause harm to be withheld rest must be provided Can, in appropriate circumstances, be provided to legal or medical practitions

28 Children s medical records General rule: Guardian entitled to access records BUT limited to where access is deemed to be in best interests of child

29 McK v Information Commissioner [2006] 1 IR 260 Parent & guardian sought access to medical records History of accusations of sexual abuse, mother deceased and child living with uncle Commissioner refused to order access to records: Records won t be released unless there is tangible evidence that such release would actually serve the best interests of the minor.

30 McK: SC Appeal Commissioner s decision overturned on appeal s.28(6) must be interpreted in accordance with Articles 41 and 42 of the constitution: Requires a presumption that a father would act in the child s best interest - access should be granted unless evidence to the contrary is established Per Denham J: The respondent should have approached the request by acknowledging that a parent is presumed to be entitled to access the information. However, the respondent may then proceed to consider any evidence which exists addressing the issue that it would not be in the minor s best interests that the parent should be furnished with such information

31 Briefing medical experts Once complete records have been obtained & reviewed to determine appropriate experts expert reports should be sought Typically UK experts, not Irish: Small size of consultant population May not be keen to rigourously criticise colleagues within the state Registries of expert witnesses in UK e.g. Law Society of England & Wales, Directory of Experts

32 Contents of Report Per Healy, at 2-14: It should introduce itself with a statement of the expert s professional qualifications followed by a summary of the patient s relevant personal details, the date of the accident or injuries, (where relevant), relevant personal details, the date of the accident or injuries, (where relevant), the date when the client was medically examined by the expert and whether any other persons were present at this examination. It should proceed to an account of the history of the medical care and outcome, followed by an account of the client s present injuries and subsequent or current medical treatment.

33 Contents of Report Cont. The report should proceed to an opinion, in light of the above, on whether negligent mistakes and errors were committed during the plaintiff s care and whether and to what extent these caused the plaintiff s injuries. If relevant, the expert should address whether some or all of the injuries would or could have arisen independently of the doctor s negligence; whether the identified negligence was the sole cause of the injury or whether it might have combined with some other cause and with what effect. If the claim is with respect to medical misdiagnosis, or delayed medical diagnosis, for instance, the expert should assess the probable outcome in the event that a correct diagnosis had been made earlier and the therapeutic opportunities the delay cause the plaintiff to lose. The report should give a clear prognosis of the plaintiff s injuries, and should specify any possible adverse sequelae to which the client may in the future be exposed in consequence of his present injuries along with an estimate of their probabilities. It should also address the possible effect of the injuries on the plaintiff in light of his personal circumstances and medical history and, specifically, any and all implications these may have on life expectancy, recreational mobility, and employment prospects.

34 Letter of Instruction to Expert 1. Brief summary of sequence of events 2. If appropriate, list of specific issues to be addressed 3. Ask expert to comment on: 1 Whether conduct fell below standard of care 2 If so, to what extent negligent conduct caused and/or contributed to the plaintiff s injuries 3 If negligence did not cause injuries, did it deprive the plaintiff of a real possibility of a better outcome?

35 Letter of Instruction to Expert Cont. 4. Enclose all relevant medical records 5. If any medical records are being excluded on the basis of irrelevance, inform the expert that they have not been included and offer to furnish them if required 6.Ask expert to comment on whether any aspect of the case requires assessment by an expert in a different field of expertise

36 Letter of Instruction to Expert Cont. 7. Briefly outline test for negligence: Expert is not a legal practitioner may not be familiar with test for negligence Even if familiar with giving expert evidence, may not have given evidence in Ireland before Enclose copy of Dunne principles with the exception of para. 3, essentially a restatement of UK test in Bolitho v City & Hackney Health Authority [1997] 4 All ER Outline Irish disclosure rules different to UK rule

37 Disclosure of expert reports Rules of the Superior Courts (No. 6) (Disclosure of Reports and Statements) 1998 (Statutory Instrument No. 391 of 1998) Plaintiff is required to furnish a schedule listing all reports from expert witnesses intended to be called at the trial of a personal injuries action, following which those reports must be disclosed to the defendant(s) Order 39, Rule 45(1)(e) requires disclosure of all reports that contain the substance of the evidence to be adduced by the expert witness

38 UK position Jackson v Marley Davenport Ltd [2004] 1 WLR 2926 Court of Appeal held that disclosure rules then in force were confined to the expert s intended evidence, not to earlier and privileged drafts of what may or may not in due course become the expert s evidence. Where final report prepared by the expert and disclosed to the opponent is complete and comprehensive, earlier reports from the same expert need not be disclosed Per Longmore LJ: it would be a retrogression and not an advance in our law if earlier reports of experts, upon which they did not intend to rely, had to be routinely disclosed before they could give evidence.

39 Irish Position Interpreted strictly Supreme Court has made it expressly clear that all reports from an expert whose evidence is to be relied upon, and which contain the substance of the evidence to be adduced, must be disclosed, and not just the final report

40 Payne v Shovlin [2007] 1 IR 114 Is plaintiff required to disclose a preliminary report from expert neurologist, obtained before the plaintiff had access to all of his medical records, when a final comprehensive opinion was written three years later Yes - The rule requires disclosure of all reports that dealt partly or wholly with the substance of the evidence to be given, irrespective of whether the views expressed by the expert were subsequently modified or qualified.

41 Payne v Shovlin Cont. Per Kearns J: [The] failure to produce an earlier report which contains a view different from that contained in the final report may produce exactly the kind of surprises about which Murphy and Geoghegan JJ warned. I think counsel for the second defendants point is well made, namely, that the failure to produce an earlier report, providing it contains the substance, or part of the substance, of the evidence which, at the time of its compilation it was intended to give, may lead to a situation where in the course of cross-examination, it may emerge that the author expressed a different view, for example, in relation to causation in a medical negligence action, at an earlier time and adverted to same in a first report. How can the interests of expedition and efficiency be served if such information only emerges in cross-examination? It might well require that the trial be adjourned while further lines of inquiry are pursued in the light of the particular revelation. Further, it would always be possible that such additional inquiries might lead to the claim being dropped altogether. All of these costly and undesirable consequences are avoided by disclosure of all reports which contain any of the substance of the evidence intended to be led.

42 Further reports required? Essential that all necessary reports are obtained and all loose ends are tied up Any ambiguity in report seek clarification Any potential negligence that cannot be addressed by first expert should be addressed by another, more appropriate expert Necessary for protection of both client and legal practitioners

43 Lopes v Walker (Unreported, Supreme Court, 28 July 1997) Professional negligence action against solicitor who had represented plaintiff in a previous RTA In the Circuit Court personal injuries action, the plaintiff was awarded 10,000 in general damages, and approximately 2000 in sundry special damages. The loss of earnings claim was dismissed. Subsequently, Plaintiff s symptoms became significantly worse displaced disc requiring multiple operations

44 Lopes v Walker (Unreported, Supreme Court, 28 July 1997) High Court: Morris J dismissed the claim against the solicitor Supreme Court: overturned this decision (Barron & Lynch JJ, Murphy J dissenting), holding that the solicitor was negligent in: failing to obtain a second neurological opinion, failing to explore the provisos in the reports of the medical experts failing to properly put the plaintiff s claim for special damages before the court and failing to remit the matter to the High Court. Remitted to the High Court for an assessment of damages - appealed to the Supreme Court Plaintiff was awarded 145,000 in damages for the negligence of the defendant solicitor.

45 Lopes: Reports obtained Dr Kelleher, 14 th February 1991: This man suffered from post-traumatic stress disorder of moderate severity precipitated by a road traffic accident on the 11 th December He was miserable and distressed until I put him on anti-depressive medication. He made a good improvement on these medications and had relief of many of the symptoms which he presented when I first saw him on the 2 nd May In fact he was making a good recovery from the post-traumatic stress condition. Predictably he had anxiety symptoms when he read the report from Cork Regional suggesting a lesion on his brain. I cannot see any connection between such a lesion and his accident as he was not rendered unconscious and was alert enough to travel to Waterford on the night of the accident. However, now that a lesion has been suggested in his brain I feel it is essential that he has magnetic resonance imaging scan carried out at the Mater Private Hospital immediately if it has not been done already to clarify the position. I also feel he would require psychiatric support for several months to help him to cope with the residual symptoms of the posttraumatic stress condition. I do not forsee any long term psychiatric sequel however.

46 Lopes: Reports obtained Mr Flynn, Consultant Orthopaedic Surgeon, 15 February 1991: Opinion This man sustained soft tissue injuries of lower back and left second toe as a result of a road traffic accident on 11 th of December He continues to complain of headache which was investigated by Dr Galvin, neurologist, and low back pain which probably resulted from a soft tissue injury of lower back. This complaint will probably improve further but is likely to persist intermittently. The gross limitation of extension of lumbar spine may also improve.

47 Lopes, Reports obtained Dr Galvin, Consultant Neurologist: I think that this man sustained a number of soft tissue injuries in his accident which are now improving. These included a lumbar strain and injuries to the left second toe. He also probably ad a soft tissue cervical whiplash injury and may have had a head injury. His headache, back pain and other symptoms are improving. He has however, a number of vaguer symptoms and is making a retarded recovery and I concur with Dr Kelleher s diagnosis of a psychological post-traumatic stress disorder. He is on ongoing treatment for depression and Dr Kelleher will be advising you on his prognosis in this regard. I think the area of numbness is probably due to pressure on the lateral cutaneous nerve in the ground and unrelated to his injuries. He also has an underlying cerebral cyst that is probably inactive and long-standing and is not in any way related to his injury. This will need follow-up in the neurology clinic and I will be arranging this. I would suggest a further review in about six to twelve months time if his symptoms are persisting. (Plaintiff not satisfied with Dr Galvin s report - on two occasions, the defendant solicitor advised the plaintiff to seek a second opinion, if he was not satisfied with Dr Galvin s report.)

48 Lopes: Loss of earning claim Medical certificate dated March 1990 that the plaintiff was unfit to go to sea. Plaintiff had previously worked as a sailor but had not done so for years. At the time of the accident, the plaintiff owned and ran a shop, which subsequently ceased trading. Plaintiff wanted to make a claim for loss of earnings, on the basis that he had always intended, had the shop not succeeded, to return to sea, but was unable to as a result of the accident. Advise of counsel was that this case was unlikely to succeed. It was argued in the CC and the CC judge rejected it.

49 Lopes, Per Barr J While the evidence from Mr Flynn, Dr Kelleher and Dr Galvin, though there is doubt as regards the latter, was fairly presented, it is unfortunate that no attention appears to have been paid to the provisos in the reports of Dr Kelleher and Dr Galvin. Perhaps Dr Kelleher would not have required an MRI scan if he was aware of Dr Galvin s view of the arachnoid cyst. But he was never asked. Perhaps Dr Galvin would have indicated that further review which he advised if symptoms persisted had nothing to do with complaints resulting from the accident. Again, he was never asked. Finally the certificate that the plaintiff was unfit to go to March 1990 some fifteen months after the accident was neither followed up nor given in evidence. While it is clear that save for the latter certificate, the medical evidence as it was then available was presented to the Court, further procedures which had been or might have been advised were not carried out.

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