Informed Consent and Professional Negligence Flashcards
What is typically sufficient in order to relieve a professional of a professional negligence claim?
If a person can show that he or she adhered to the customary practice of his or her profession, this should normally be sufficient to relieve him or her of liability in negligence.
Montgomery v Lanarkshire Health Board case (UK - failure to warn) is the demonstration of an exception. UK courts have had a rising trend in prioritising patient autonomy.
What are two exceptions to the adherence to professional practices defence?
Montgomery v Lanarkshire Health Board case (UK - failure to warn) is the demonstration of an exception. UK courts have had a rising trend in prioritising patient autonomy when it comes to pre-procedure disclosures, particularly for elective procedures.
The other exception is that if it is plainly apparent that the common practice has inherent defects, which ought to be obvious to anyone giving the matter due consideration, the common practice cannot be used as a defence. (One of the five Dunne principles.)
How are customary professional practices established in court?
Judges will rely on professional testimony and will have to determine based on what they hear if the professional practice is customary are not.
This is assuming the common practice does not have any inherent defects.
True or False: If a doctor fails to cure or improve a patient’s health, they can be held responsible for professional negligence.
False. The main outcome is that a doctor is expected to act reasonably, not perfectly. He or she is not expected to cure or necessarily improve a patient’s condition; all they have to show is that they have acted reasonably in accordance with their skill and knowledge.
What are the professional negligence rules for general practicioners (GPs)?
The law requires that GPs make a reasonable diagnosis, not a correct one, and that in cases where the GP is uncertain or where it is clear that a specialist investogation is needed, the GP should make the referral of the patient.
Collins v Midwestern Health Board
What are two ends of the spectrum in failure to warn risk cases?
Medical paternalism vs. patient autonomy
What is the therapuetic exception in medical disclosure cases?
If the procedure is medically urgent/necessary and the doctor thinks disclosing a risk about the procedure to the patient will prevent them from seeking the important treatment, they may choose to withhold this information.
Describe the progression of medical disclosure tests in Ireland and UK
Both started at “the reasonable professional decides what is to be disclosed)
Ireland moved to the objective “reasonable patient” disclosure test (Fitzpatrick v White)
UK moved to subjective “particular patient test” - Montgomery
Irish case - precedent for medical negligence
Mother giving birth to twins. Doctors made choices to only monitor for one foetal heartbeat. One twin died and the other was born with severe brain damage due to lack of oxygen.
The six Dunne principles:
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 like specialisation and skill would have followed had he been taking the ordinary care required from a person of his qualifications.
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 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 …. be left to a judge.
(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.
(b) Though treatment only is referred to in some of these statements of principle, they must apply in identical fashion to questions of diagnosis.
Dunne v National Maternity Hospital [1989]
Medical negligence standard in the UK. Doctors failed to restrain a victim receiving electroshock therapy, which resulted in the patient fracturing his hip.
Court held: “ A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. … [and acts] in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.”
The defendant was not in breach of duty, because other responsible doctors would have acted in the same way.
Bolam v Friern Hospital Management Committee [1957]
Irish case
GP who failed to properly diagnose patient. (“Tell me all about it.”)
“The test of the obligation of the general practitioner is whether a reasonably prudent general practitioner exercising ordinary care would have acted as he did in the circumstances. The reality of the test is to inquire whether or not the general practitioner acted reasonably in the circumstances as known to him.”
Collins v Midwestern Health Board [2000]
Irish case
Patient underwent eye surgery. Surgery performed perfectly buthe plaintiff ended up having double vision, headaches and a poor cosmetic result. Plaintiff had been told about risk 30 min prior to surgery.
Requirements for disclosure are (from Walsh case):
“(a) the requirement on a medical practitioner to give a warning of any material risk which is a “known complication” of an operative procedure properly carried out;
(b) the test of materiality in elective surgery is to inquire only if there is any risk, however exceptional or remote, of grave consequences involving severe pain stretching for an appreciable time into the future.”
Patient must be warned of material risks: a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it.
Patient was found by SC to have been given sufficient warning, but SC held that if the surgery had been elective and/or been held late in the day, the outcome might be different.
Fitzpatrick v White [2008]
UK Case
Patient with back issue underwent spinal surgery to fix the issue. She was not warned of a potential risk which would make her back problem worse (occurs in about 1% of cases).
“In modern law medical paternalism no longer rules and a patient has a prima facie right to be informed by a surgeon of a small, but well established, risk of serious injury as a result of surgery.”
Patients “have the right to make decisions which doctors regard as ill advised.’
Chester v Afshar [2004]
UK Case
The claimant was a woman of small stature and a diabetic under the care of a doctor during her pregnancy and labour.The doctor did not inform her of the 9-10% risk of shoulder dystocia, where the baby’s shoulders are unable to pass through the pelvis among diabetic women as she viewed the problem being very slight and believed a caesarean section was not in the claimant’s interest.
The baby suffered from severe disabilities after birth due to shoulder dystocia. The claimant sought damages from the health board for negligence on the part of the doctor for failing to advise her on the risk of shoulder dystocia.
Adopted patient centered approach from Chester v Afshar
The Court focused on the patient’s own valuation of a risk in determining whether a risk was significant, and therefore material, for the purposes of whether the doctor should have disclosed the risk.
Montgomery v Lanarkshire Health Board [2015]
“Materiality” includes consideration of both (a) the severity of the consequences and (b) the statistical frequency of the risk.
Geoghegan v Harris - tooth surgery case. Claim dismissed because adequate warning was given.
