Medical Negligence

Question 1

The doctor must possess and deploy…

Answer 1

reasonable skill at an objective standard

Question 2

A specialist should attain…

Answer 2

ordinary level of skill as those who specialise in same field

Question 3

GPs level of skill

Answer 3

Nott as much as specialist. But need to know when expert advice is needed

Question 4

Dunne v National Maternity Hospital

Answer 4

Core principles of negligence and diagnosis

Question 5

Daniels v Heskin

Answer 5

D bound to possess and use reasonable skill ( having regard to him being a GP)

Question 6

O’Donovan v Cork Co. Co.

Answer 6

Specialists should have ordinary level of skill as those in same field

Question 7

Collins v Mid-Western Health Board and O’Connor

Answer 7

Test: Reasonably prudent GP exercising same ordinary care would have done the same

Question 8

Dunne Principle 1

Answer 8

Test whether the practitioner acted with ordinary reasonable care (Morrissey v HSE)

Question 9

Dunne Principle 2

Answer 9

If they deviated from general and approved practice, this doesnt establish negligence unless the course they took was one which no MP of like specialisation and skill would have followed

Question 10

Dunne Principle 3

Answer 10

Inherent defects which ought to be obvious to any person in general and approved practice (Roche v Peelo)

Question 11

Dunne Principle 4

Answer 11

Honest difference in opinion between doctors does not provide any ground for leaving a question to jury. (Jury abolished in 1988)

Question 12

Dunne Principle 5

Answer 12

It is not for the judge to decide between 2 alternatives

Question 13

Dunne Principle 6

Answer 13

General and approved practice doesnt need to be universal, but should be done by a substantial number of reputable practitioners.
Same principles apply to questions of diagnosis

Question 14

Collins v Mid Western Health Board

Answer 14

Court must reserve power to find as unsafe practices

Question 15

Shuit v Mylotte

Answer 15

Mistaken Hysterectomy Case. Dunne Principles applied. Not found negligent in the end.

Question 16

Morrissey & Morrissey v HSE

Answer 16

Cervical Cancer Scandal. Tests found in 2015 and nothing done until 2018. Clarke CJ uses standard of approach instead of standard of care. Dunne principles mirror regular professional negligence approach (Roche v Peilow). Expert testimonies are critical

Question 17

Standard of approach

Answer 17

Courts cant decide it. It is derived from the one in place in the profession (Morrissey)

Question 18

Philip v Ryan

Answer 18

Failure to diagnose should decrease a patients lifespan, they should get damages. -Fennelly J

Question 19

Causation in Medical Negligence

Answer 19

Not enough to say that D breached the standard of care. Their negligence must have caused the injury.

Question 20

The Professional standard test

Answer 20

Gives upper hand to medical judgment. Generally approved practice

Question 21

Reasonable Patient Test

Answer 21

Must disclose all material risks, so patient makes real choice

Question 22

Walsh v Irish Family Planning Services

Answer 22

P had vasectomy. Had to get bollock removed. Very rare side effect. Finlay CJ approved professional standard of disclosure test, O’Flaherty J went for the Reasonable Patient test. They agreed that in elective procedures the risks should be explained in clearest language.

Question 23

Bolton v Blackrock Clinic

Answer 23

SC took view of Finlay CJ

Question 24

Geoghegan v Harris

Answer 24

Dental implant causes P constant neural pain, Insufficient bone. Kearns J took view of O’Flaherty J in Walsh.

Question 25

Quinn v South Eastern Health Board

Answer 25

Appendectomy Case. Easier treatments than neurectemy which made it worse. P successful.

Question 26

Fitzpatrick v White

Answer 26

Double vision Case. Argued that consent was given when wheeled in ti operating theatre, Court said this was irrelevant. No plausible link. Three judges endorsed reasonable patient test. Kearns J: Patient has right to know, and MP has duty to advise on all material risks.

Question 27

England and Wales

Answer 27

Doctor favoured test (Bolam v Friern Hospital Management Committee)

Question 28

England and wales recent developments

Answer 28

Reasonable patient test version appearing, (Pearce v United Bristol Healthcare NHS Trust)

Question 29

Rogers v Whitaker

Answer 29

Patient centred test adopted in virtually every major common law jurisdiction e.g. Australia

Question 30

Rosenbery v Pecival

Answer 30

Kirby J gives pros and cons of strict test in Rogers,

Question 31

Heffernan v Mercy University Hospital

Answer 31

Testical size reduced following surgery, Operation negligent but informed consent argument failed as P would have gotten it anyway

Question 32

Healy v Buckley

Answer 32

Part of tumour taken out case. D obliged to give warning to any material rusk which was foreseeable. (Geoghegan)
The material risks must be disclosed when considering what a material risk is. Doctor must consider the statistical frequency of the risk and severity of consequences (Fitzpatrick)