PROFESSIONAL NEGLIGENCE
MEDICAL NEGLIGENCE CLAIMS
Monday 16 July 2012
Paper by Charles Meenan SC
_______________________________________________________________
Topics:The topics which I propose to cover in this paper are:1.
2.
3.
4.
5.
6.
Standard of Care;
Causation;
Damages;
Statute of Limitations;
Civil Liability and Courts Act, 2004;
The Personal Injuries Assessment Board Act, 2003.
In paper such as this I cannot give the above topics the detail they deserve.
However, I hope that I have covered them in the particular context of medical
negligence claims. If there are questions and problems which I have not answered
maybe this paper will, at least, give some idea as to where the answer may be
found.
Introduction:Medical Negligence law is often thought of as being an independent republic in the
law of tort. This, of course, is not the case. However, it can be said that the
boundaries of Tort Law and Statute Law have been tested by claims involving
medical negligence. For example, the leading cases in interpreting the provisions of
the Statute of Limitations (Amendment) Act, 1991 and S.I. 391 of 1998 (the
Disclosure Rules) are medical negligence claims.
It should be the aim of the law in this area to strike a balance between the need to
protect the welfare of patients and avoid medical personnel being required to
practice “defensive medicine”.
People when ill are at their most vulnerable and require the protection of the law
when they entrust themselves to a profession who speak a language that is, at
times, impenetrable and who often carry out their work whilst the patient is
unconscious. At the same time, it cannot be in the interests of patients to have a
doctor practising medicine with a “risk manager” looking over his / her shoulder.
1.
Standard of Care:-
The relevant principles are set out in the Judgement of Finlay C.J., in Dunne (An
Infant) v National Maternity Hospital [1989] IR 91. Stating these principles
the then Chief Justice referred to the earlier Supreme Court decision of O’Donovan
v Cork County Council [1967] IR 173 and observed “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 principles thus laid down..”
The principles are as follows:(i)
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.
(ii)
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.
(iii)
If a medical practitioner charged with negligence defends his conduct by
establishing that he followed a practice which was general and which was approved
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.
(iv)
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.
(v)
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.
“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.
Most expert evidence given in medical negligence actions is directed towards proving
or disproving the requirements of the first principle. The onus on the Plaintiff is a
heavy one as he / she has to prove that the doctor who he / she is suing has 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”.
There is very often little debate as to what is or is not a “general and approved
practice” Even if an expert on behalf of a Plaintiff manages to prove that the doctor
in question did deviate from a general and approved practice this won’t establish
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negligence unless it is also proved that the course he took was one which “no
medical practitioner of like specialisation and skill would have followed had he been
taken the ordinary care required for a person of his qualifications.
The third principle may, on first reading be “tilted” in favour of a Plaintiff. However,
a Plaintiff who takes on the task of trying to establish that a “general and approved
practice” is “inherently defective” carries a very heavy burden.
As was observed by Keane J., (as he then was) in Collins v Midwestern Health
Board [2000] 2 IR 154:-
“It can, I think, be safely said that, in general, a lay tribunal will be reluctant to
condemn as unsafe a practice which has been universally approved in a particular
profession. The defects in a practice universally followed by specialists in the field
are unlikely to be as obvious as the test requires: if they were, it is a reasonable
assumption that it would not be followed. But the principle which was first stated by
the Court in O’Donovan v Cork County Council (1976) IR is an important
reminder that, ultimately, the courts must reserve the power to find as unsafe
practices which have generally been followed in a profession”.
It is perhaps worthy of note that “general and approved practice” in this case was an
admission system which allowed a Junior Hospital Doctor to disregard the opinion of
an experienced General Practitioner when it came to admitting a patient into
hospital. Thus, it could be said that the “practice” in this case was based more on
administration than medical science.
The Dunne principles have been with us now for some twenty four years. With the
increase in the complexity and number of cases in the area of medical negligence in
recent years it can be said that these principles have stood the test of time.
Perhaps the reason why they have never been challenged is that they have managed
to strike the balance between the need to protect the patient and the requirement
that doctors avoid practising “defensive medicine”.
2.
Causation:For a Plaintiff to succeed in a medial negligence action not only does he / she have
to establish the breach of duty but it also has to be established that there is the
necessary link between that negligence and the injury complained of. This “link” is
referred to as “causation”.
It is often the case that a Plaintiff does manage to establish a breach of duty but
fails to show that the negligence caused the injury. Therefore, the Plaintiff loses the
action.
The test which the courts apply to resolve the issue of causation is the “but for” test.
This can simply be stated that “but for” the breach of duty the Plaintiff would not
have suffered the damage.
The “but for” test is well illustrated in the Supreme Court decision of Quinn (A
Minor) v Midwestern Health Board (2005) 4IR1. The Plaintiff in this action
was born at a gestational age of thirty-nine weeks and one day with severe brain
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damage attributable to a condition subsequently diagnosed as PVL. The Plaintiff
claimed that she ought to have been delivered not later than week 35 gestation
when it was contended that she would have avoided all or substantially all of the
brain damage which occurred.
The Defendants admitted negligence in the management of the pregnancy and
accepted that the Plaintiff should have been delivered earlier than she was.
However, though conceding breach of duty, the Defendant relied on causation as its
Defence. The Defendants contended that the Plaintiff’s brain damage was caused
by an acute episode between weeks twenty-eight and thirty so that the outcome
would not have been any different had she been delivered earlier than she was.
In the High Court, the Trial Judge was faced with two different explanations for the
Plaintiff’s injury.
In resolving this in the High Court, O’Sullivan J., having referred to the Judgement of
Finlay C.J., in Best v Welcome Foundation Limited (1993) 3 IR 421
concluded:“I am left, therefore, with two mutually inconsistent bodies of evidence neither of
which wholly and satisfactorily resolves the issues in the case. It is not for me,
following Finlay C.J., to set myself up as a determining authority in regards to the
specialist issues, nor do I attempt to do so. I am unable in this case, however, by
the application of common sense and a careful understanding of the logic and
likelihood of events, to reach a conclusion that the evidence adduced by the Plaintiff
establishes her case on the balance of probabilities…in that event I must dismiss her
claim”.
The matter was appealed to the Supreme Court. In the Supreme Court the
Appellants argued for a modified approach to proof of causation by reference to
principle, authority and policy. The Appellant relied upon a series of English cases
commencing with McGhee v National Coal Board (1973) 1 WLR 1. Had the
Supreme Court accepted these arguments it would have meant that in particular
circumstances where liability had clearly been established but causation was an issue
the matter would have been resolved by putting the onus on the Defendant to
disprove causation.
In giving the Judgement of the Supreme Court Kearns J., (as he then was), having
analysed the English and Canadian case law stated:“From the review of the cases undertaken herein, I am driven to conclude that
Counsel for the Defendants submissions in relation to the onus of proof and
causation generally are correct and that the “but for” approach to causation must be
followed by this Court. Any approach which had the effect of reversing the onus of
proof, or transferring the onus of proof to the Defendant, would be one of such
importance, even in the few exceptional cases where it might be appropriate, that it
would require a full Court – or perhaps even legislation – before a change of such
magnitude to existing law could take place. Nor do special circumstances arise or
exist in this case to bring it within the more relaxed requirements for establishing
causation which were found to exist in McGee v National Coal Board…”.
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However, Kearns J., did give some indication of what the “few exceptional cases”
might be. These may be cases where there were multiple Defendants (this would be
governed by Section 11(3) of the Civil Liability Act, 1961) or where a single agency
was clearly established as the cause of the Plaintiff’s condition, as was the situation
in McGee case.
3.
Damages:The general law on the assessment of damages applies to damages in medical
negligence claims. However, there are two aspects of damages being “periodic
payments” and damages for “loss of opportunity” which have particular relevance to
medical negligence claims:-
(i)
“Periodic Payments”
At present, in the absence of an agreement between the parties, damages to an
injured Plaintiff are paid in a lump sum. Where the amount of damages awarded
includes a significant amount for future loss, e.g. cost of future care, this can present
difficulties.
This can be illustrated by taking the example of a child born in 2008 who has
cerebral palsy as a result of negligence in the manner in which his mother’s labour
was dealt with by the medical personnel present. The child sues those responsible
and the action comes on for hearing in January 2012. The Defendant accepts
liability and it is agreed that the child has a life expectancy of sixty. Under the lump
sum system the Court has to make an award in January 2012 that will cover future
cost of care, needs and appliances, accommodation and other heads of future loss
until the year 2068. Two obvious problems arise. Firstly, who will cover the cost of
the Plaintiff should he live beyond the life expectancy as calculated in 2012.
Secondly, it may happen that the sixty years of life expectancy is not realised and
the Plaintiff dies earlier resulting in “over compensation”.
In England, Wales and Northern Ireland these problems have been addressed by the
provisions of the Damages Act, 1996 (as amended by the Court’s Act, 2003). These
Acts provide for periodical payments over future years rather than a lump sum. In
support of these statutory provisions there are a number of statistical tables that
deal with all or most of the important matters like costs of “care assistance and
home carers” and “aids and appliances”.
Another issue which is addressed in the English legislation is as to what happens in a
situation where the Plaintiff’s condition either deteriorates or significantly improves.
This is referred to as a “variation order”. In the neighbouring jurisdiction, the scope
for variation is narrow and unless an event or development is anticipated at the time
of the hearing or the settlement of the action it cannot be encompassed in the order
for “periodic payments”.
In this jurisdiction, though promised, we do not as yet have a statutory framework
for a Court to award damages by way of “periodic payment”. Further, we do not
have the statistical tables that would be necessary at the time of the hearing or
settlement to formulate periodic payments for the several head of damages that
arise.
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Although having significant benefits “periodic payments” pose a number of problems.
Firstly, a Plaintiff accepting a significant award by way of “periodic payment” would
have to be satisfied as to the financial security of the person who is paying the
amount. Where the State, or an agency of the State is the Defendant this should not
pose a problem. However, where the Defendant is being indemnified by a “private”
insurer the Plaintiff’s advisors would want to be completely satisfied that the
indemnifier will be in a position to make payments many years into the future.
A problem may also arise where liability is significantly in issue. Supposing liability is
only 50 / 50 one cannot have a situation where only 50% of the cost of future care is
being paid. This problem could be overcome by a Plaintiff abandoning certain heads
of damages so as to receive full compensation for others.
It seems to be the case that in Britain where there is an issue on liability in the order
of 25% or more it would generally be in the Plaintiff’s best interest to have his / her
compensation paid by way of the standard “lump sum”.
Finally, on this topic before the Plaintiff’s advisors could recommend to the Court that
damages be paid by way of “periodic payments” they must have available to them
the necessary financial and accounting expertises. These are experts who may not
feature in the present lump sum system.
(ii)
“Loss of Opportunity”
An issue that can often arise in medical negligence actions is to what extent, if at all,
can a Plaintiff can be compensated where he / she has lost the opportunity of
having the condition treated as a result of a misdiagnosis on the part of the
Defendant.
This issue arose in Philip v Ryan (2004) 4 IR 241. In this action, the Plaintiff was
diagnosed with prostate cancer. The diagnosis had been missed by the Defendant
some eight months earlier. The Plaintiff claimed, inter alia, that had his prostate
cancer been diagnosed eight months earlier he would have had the opportunity to
have this condition treated. In the High Court the Plaintiff was successful in his
action but the Trial Judge did not award any damages for the “loss of opportunity” of
treatment. The matter was appealed to the Supreme Court.
In the Supreme Court, the Defendant argued that this type of lost opportunity was
not “valuable” in the sense that it should not attract compensation unless it could be
proved that the treatment would probably have been successful. This argument was
not accepted by the Court. Fennelly J., said:“...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 has been deprived of appropriate medical
advice and the consequent opportunity to avail 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 the future develop arthritis in an injured joint. The risk may be high
or low – a 15% risk is often mentioned – but damages are paid. I cannot agree that
this is any different from what is sought in the present case…”.
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The level of damages should be proportionate to the chances of a successful cure.
4.
Statute of Limitations:Section 7 of the Civil Liability and Courts Act, 2004, reduces the prescribed period
from three years to two years.
As medical negligence actions are specifically excluded from P.I.A.B. (Injuries Board).
We do not have the complication of calculating the statutory time period allowing for
an application to the Board and a subsequent authorisation.
However, in medical negligence actions problems over limitations arise on the
application of Section 2 of the Statute of Limitations (Amendment) Act, 1991 (the
Act).
Section 2 provides, inter alia:-
(a)
(i)
(ii)
For any provision of this Act whereby the time within which an action in respect of
an injury maybe brought depends on a persons date of knowledge… references to
that persons date of knowledge are references to the date on which he first had
knowledge of the following facts:
That the person alleged to have been injured had been injured;
That the injury in question was significant;
(iii)
That the injury was attributable in whole or in part to the act or omission
which is alleged to constitute the negligence, nuisance or breach of duty;
(iv)
The identity of the Defendant;
(v)
If it is alleged that the act or omission was that of a person other than the
Defendant, the identity of that person and the addition facts purporting the bringing
of an action against the Defendant.
Knowledge that any acts or omissions did or did not, as a matter of law,
involve negligence, nuisance or breach of duty is irrelevant.
(b)
(i)
For the purposes of this section, a persons knowledge includes knowledge
which he might reasonably have been expected to acquire:
From facts observable or ascertainable by him;
From facts ascertainable by him with the help of medical or other
appropriate expert advise which it is reasonable for him to seek;
(iii)
Notwithstanding subsection (ii) of this section:(ii)
i.
A person shall not be fixed under this section with knowledge of a fact
ascertainable only with the help of expert advise so long as he has taken all
reasonable steps to obtain (and where appropriate, to act on) that advice; and
ii.
A person injured shall not be fixed under this section with knowledge of a
fact relevant to the injury which he has failed to acquire as a result of that injury.
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This section of the Act has been the subject of a number of Supreme Court
decisions in particular Gough v Neary (2003) 3 IR 92, Cunningham v Neary
(2004) 2 ILRM 498 and Fortune v McLoughlin (2004) 1 IR 526.
It is essential as practitioners that we are able to identify the point when
time starts to run, all the more so, given that the period has now been reduced to
two years. Geoghegan J., in the Gough case stated:-
“While it may not be necessary for the purposes of starting the Statute to
run to know enough detail to draft a Statement of Claim, a Plaintiff in my opinion
must know enough facts as would be capable of at least upon further elaboration of
establishing a cause of action even if the Plaintiff has no idea that those facts of
which he had knowledge do in fact constitute a cause of action as that particular
knowledge is irrelevant under the Act…”.
The adequacy of the knowledge must be related to the context of the action and,
indeed, the Plaintiff’s own personal circumstances.
In delivering his judgement in the Gough case, Geoghegan J., cited with approval,
Spargo v North Essex District Health Authority (1997) 8 MED 25 wherein it
was stated that a Plaintiff has the requisite knowledge when he / she knows enough
to make it reasonable for he / she begin to investigate whether or not he / she has a
cause of action against the Defendant.
The Plaintiff will have such knowledge when he / she firmly believes that the
condition complained of is capable of being attributed to an act or omission which
can be identified (in broad terms that he / she goes to a solicitor to seek advise
about making a claim for compensation). The Judgement of Geoghegan J. in the
Gough case was cited with approval in the Fortune case.
In the Cunningham case, the Plaintiff attended the First Named Defendant who
carried out an operation on her entailing the removal of one of her ovaries. This
operation took place in August 1991. In December, 1998, the Plaintiff wrote a letter
of complaint to the Medial Council detailing her experiences with the First Named
Defendant. The Plaintiff consulted a solicitor in May 2000 whereupon an expert
report from an independent consultant was sought. This report was delivered in
April 2001 and proceedings were commenced in March 2002.
Applying the reasoning in the Gough case the Supreme Court held that time for the
purposes of the Act began to run not later than December, 1998 being the date of
the letter of complaint to the Medical Council. In his Judgement Fennelly J., applying
Section 2(2) held that as of December, 1998, the Plaintiff had “constructive
knowledge”:“It shows, however, that if the Plaintiff had gone to a solicitor in December
1998, she would have obtained the sort of advice which would have made out a case
in negligence against the Defendant. Therefore, the key fact that the removal of the
ovary had been unnecessary was “ascertainable” and, for the purposes of the
section, the Plaintiff is deemed to have knowledge of it as of that date”.
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Therefore, on the basis of these decisions, the time for the purposes of a
statute would begin to run when the Plaintiff has sufficient knowledge that he / she
goes to a solicitor to seek advice.
In Geraldine Harte v Ireland and Ors (Unreported Hedigan J., 24th
July, 2009, the Plaintiff complained that she contracted MRSA at a hospital in
November 2004. The Plaintiff was a registered nurse who worked as a clinical nurse
manager. Following her discharge from the Hospital she felt unwell and was
admitted to Mayo General Hospital from which she was discharged on 17th
November, 2004.
On 24th November, 2004, the Plaintiff wrote a letter of complaint to the
Matron at the Hospital where she claimed she contracted MRSA. The letter finished
as follows:“I am very angry about the MRSA infection in my wounds following varicose
vein surgery because it should not have happened. I want this fully investigated as I
do not wish any other patient to suffer like I have…”.
The letter did not threaten legal proceedings but was clearly one that identified a
serious injury and was blaming the Hospital for it.
On 26th January, 2005, the Plaintiff consulted her solicitors. In March 2005, the
solicitors wrote to the Hospital seeking the Plaintiff’s medical records. The records
were initially refused on the basis that they could only be released when proceedings
issued. The Plaintiff’s solicitors corresponded with an expert in the United Kingdom.
The medical notes which the Plaintiff required were not provided by the Hospital until
9th March, 2007, they were then sent to the expert in the UK who furnished an
expert report on 16th May, 2007. On 23rd July, 2007, a Personal Injury Summons
was issued.
The relevant limitation period in this case was complicated by the fact that it was
governed by the transition provisions of the 2004 Act which reduced the relevant
period from three years to two years.
However, what is of importance in this decision was the finding by the Court that at
the time the Plaintiff wrote her letter of 24th November, 2004, she had sufficient
knowledge that she had suffered a significant injury caused by the operation during
which she had contracted an infection. It therefore follows that as of that date, the
Plaintiff has sufficient “knowledge” to start time running under the Act.
Another aspect of this decision is of great importance to practitioners. In this case,
the Plaintiff argued that as she did not have an expert report she was not in a
position to initiate proceedings. It is well established that proceedings should not be
issued in professional negligence actions without having the benefit of an expert
report (see Cooke v Cronin (1999) High Court). The Court held that the
absence of an expert report did not prevent time running.
Therefore, when the expiry of time under the Act is looming proceedings must be
issued even though an expert report is not to hand. It should be noted that under SI
248/2005, Rule 6, proceedings can be issued with an explanation as to why
particulars of negligence are not included.
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Every year a number of applications are made to dismiss proceedings on the grounds
that they are Statute Barred. Although I do not have statistics, I suspect that the
success rate for these applications is not that high. It is probably not a coincidence
that in two of the cases referred to above, the Plaintiff had written a letter of
complaint so it was difficult to claim not having the requisite knowledge to start time
running.
The Personal Injuries Assessment Board Act, 2003:Section 3(d) of this Act provides:“This Act applies to the following civil actions –
(d)
A civil action not falling with any of the preceding paragraphs (other than
one arising out of the provision of any health service to a person, the carrying out of
a medical or surgical procedure in relation to a person or the provision of any
medical advice or treatment to a person)”
This has the effect of excluding medical negligence actions from the
Injuries Board. Serious problems can arise if a medical negligence type action is sent
to the Injuries Board rather than proceedings being initiated immediately as this can
result in the action being Statute barred.
This was clearly illustrated in the recent High Court decision of Patricia
Carroll v Mater Misericordiae Hospital (2011) 2 IR 411.
In this case on or about the 30th of May, 2005, the Plaintiff was an inpatient
in the Defendant Hospital. Whilst she was on medication consisting of a number of
drugs she left her bed unaccompanied and went to the bathroom. In the bathroom
she became dizzy, fainted and fell as a result of which she suffered severe personal
injuries.
The Defendant claimed that the Plaintiff’s action was Statute barred
because it was an action to which the 2003 Act did not apply and therefore must be
brought within two years of the date of the accident i.e. 29th May, 2007.
However, the Personal Injury Summons was only issued on 17th April, 2008
following an application to the Injuries Board. If the 2003 Act did apply to this action
then the Plaintiff’s claim may not be Statute barred.
The Plaintiff sought to draw a distinction between “nursing care” and
“medical care”. It was alleged that the accident arose out of nursing care and not
medical care and was not a claim for negligent prescription of drugs.
The Defendant argued that the claim was one that arose out of the
provision of a health service and at the trial of the action it would be necessary to
call medical evidence to establish the forseeability of the Plaintiff’s accident whilst
under the influence of medication. This was not a case of slipping and falling on the
way to the bathroom.
Hedigan J., accepted the Submissions of the Defendant and accepted the
argument on foreseeability. The Court also held that though nursing care and
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medial care can be differentiated they are linked. If nursing care were not to be
covered by the exclusion in Section 3(d) it would have to be defined as a service
which was neither part of a health service nor the provision of a medical service.
It therefore followed the 2003 Act did not apply and so the action would be
Statute barred.
I have limited this paper to a number of specific topics. However, other
topics, which can loom large in medical negligence actions, include the duty of a
doctor to disclose to the patient, the nature, extent and possible side effects of
treatment (consent).
Also there is a considerable body of case law concerning applications to
dismiss medical negligence claims by reason of “want of prosecution” a lapse of
time.
ENDS
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