Medical Negligence Flashcards
The doctor must possess and deploy…
reasonable skill at an objective standard
A specialist should attain…
ordinary level of skill as those who specialise in same field
GPs level of skill
Nott as much as specialist. But need to know when expert advice is needed
Dunne v National Maternity Hospital
Core principles of negligence and diagnosis
Daniels v Heskin
D bound to possess and use reasonable skill ( having regard to him being a GP)
O’Donovan v Cork Co. Co.
Specialists should have ordinary level of skill as those in same field
Collins v Mid-Western Health Board and O’Connor
Test: Reasonably prudent GP exercising same ordinary care would have done the same
Dunne Principle 1
Test whether the practitioner acted with ordinary reasonable care (Morrissey v HSE)
Dunne Principle 2
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
Dunne Principle 3
Inherent defects which ought to be obvious to any person in general and approved practice (Roche v Peelo)
Dunne Principle 4
Honest difference in opinion between doctors does not provide any ground for leaving a question to jury. (Jury abolished in 1988)
Dunne Principle 5
It is not for the judge to decide between 2 alternatives
Dunne Principle 6
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
Collins v Mid Western Health Board
Court must reserve power to find as unsafe practices
Shuit v Mylotte
Mistaken Hysterectomy Case. Dunne Principles applied. Not found negligent in the end.
Morrissey & Morrissey v HSE
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
Standard of approach
Courts cant decide it. It is derived from the one in place in the profession (Morrissey)
Philip v Ryan
Failure to diagnose should decrease a patients lifespan, they should get damages. -Fennelly J
Causation in Medical Negligence
Not enough to say that D breached the standard of care. Their negligence must have caused the injury.
The Professional standard test
Gives upper hand to medical judgment. Generally approved practice
Reasonable Patient Test
Must disclose all material risks, so patient makes real choice
Walsh v Irish Family Planning Services
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.
Bolton v Blackrock Clinic
SC took view of Finlay CJ
Geoghegan v Harris
Dental implant causes P constant neural pain, Insufficient bone. Kearns J took view of O’Flaherty J in Walsh.
Quinn v South Eastern Health Board
Appendectomy Case. Easier treatments than neurectemy which made it worse. P successful.
Fitzpatrick v White
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.
England and Wales
Doctor favoured test (Bolam v Friern Hospital Management Committee)
England and wales recent developments
Reasonable patient test version appearing, (Pearce v United Bristol Healthcare NHS Trust)
Rogers v Whitaker
Patient centred test adopted in virtually every major common law jurisdiction e.g. Australia
Rosenbery v Pecival
Kirby J gives pros and cons of strict test in Rogers,
Heffernan v Mercy University Hospital
Testical size reduced following surgery, Operation negligent but informed consent argument failed as P would have gotten it anyway
Healy v Buckley
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)
