Medical negligence

Question 1

• A medical practitioner cannot be held negligent if he follows general and approved practice in the situation with which he is faced - the common practice can not have inherent defects
  
  • doctor can not hide behind “common practice” if it has defects
  • courts look to studies and literature to find customary practise and defects
• general and approved practice – ‘inherent defects’ exception

Answer 1

O’Donovan v Cork County Council [1967] IR 173

Question 2

• a reasonably careful member of the profession, and a person cannot be said to be acting reasonably if he automatically and mindlessly follows the practice of others when by taking thought he would have realised that the practice in question was fraught with peril for his client,
  
  • professional cannot hide behind a customary practice if it has obvious inherent defects
  • test has moved to “reasonable doctor”
    
    • 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.
• approved ‘inherent defects’ exception

Answer 2

Roche v Peilow [1986] ILRM 189

Question 3

• confirms the reasonable doctor practice
• applies to both diagnosis and treatment
  5 step test:
  1) Standard of Care
  2) Deviation from General Practice
  3) Obvious Defects Exception
  4) Judicial Role
  5) General Practice Criteria - both treatment and diagnosis

Answer 3

Test in IE: Dunne v National Maternity Hospital [1989] IR 91

Question 4

• both an informed consent and test establishing case
• 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.”
  
  • essentially same test as in IE
• The court in held that the defendant was not in breach of duty, because other responsible doctors would have acted in the same way. - not correctly physically restrained- fractured hip

Answer 4

Test in UK: Bolam v Friern Hospital Management Committee [1957] 1 WLR 582

Question 5

• decided on GPs rules
• have to take into account the circumstances of the visit and ask questions to be satisfied as to the patient’s state of health.
• Test is that of a reasonably prudent general practitioner exercising ordinary care in the circumstances. GP must also refer to a specialist when necessary.
• plaintiff´s husband ill, went to doctor - told him it will improve- got worse- went to other doctor - knew he has chronic headaches- wanted to get him to hospital - died
• HC RULING: patient did not tell enough - GP not negligent
• SC RULING reversed HC: reasoning being the GP should have asked more
  
  • information was given in reply to “tell me all about it”. While that must be a good starting point, it should not be the finishing point also.

Answer 5

Collins v Midwestern Health Board [2000] 2 IR 154- test for GPs

Question 6

• foundational informed consent case - Montgomery adopts test outlined by dissenting judge in this case - established risk as one of the preconditions (magnitude of risk and severity)
• claimant underwent an operation on her back and became paralysed - not negligent performance - there was risk of that outcome - patient argued that not informed
• House of lords held: applied strict Bolam test, no breach of duty (reasonable practise), patient´s voice not considered
  
  • Lord Scarman took the most pro patient autonomy approach, and that is now the approach used by courts after Montgomery.
  • Caveat: “‘substantial risk of adverse grave consequences’ a judge might … come to the conclusion that disclosure of a particular risk was so obviously necessary to an informed choice on the part of the patient that no reasonably prudent medical man would fail to make it.” - exception to Bolam test outlined
    
    • in this case small risk so this caveat did not apply
    • not fairest test - other risks also important

Answer 6

Sidaway v Governors of the Royal Bethlem Hospital [1985] 1 AC 871 -UK

Question 7

• vasectomy procedure - suffered a lot of pain - should have been warned - volunteered for the operation
• SC: bc of circumstances, there was an obligation to warn the patient despite the rarity of its occurrence, particularly since the operation was elective
  
  • if it is an emergency operation - the patient needs it - less space for negotiating it- higher burden on plaintiff - don´t need to tell everything
• Walsh left the law on informed consent in an unsatisfactory and confused state. There was no clear consensus on the scope of duty of disclosure

Answer 7

Walsh v Family Planning Services Ltd [1992] 1 IR 496 - difference in elective V mandatory surgery

Question 8

• dental operation- patient not warned
• judge did not favour applying the Dunne test to disclosure of risks, because that puts the doctor fully in charge of deciding what risks are disclosed to the patient.
• Instead, looked at pro patient approach in Walsh - lead to “reasonable patient” test
  
  • the patient has the right to know and the practitioner a duty to advise of all material risks associated with a proposed form of treatment. The court must ultimately decide what is material
• ‘”Materiality” includes consideration of both:
  
  • (a) the severity of the consequences and
  • (b) the statistical frequency of the risk
• dentist was found in breach of his duty - the risk that he did not mention was a known complication
  
  • elective procedures doctors have to disclose a known risk of severe pain, however unlikely the risk

Answer 8

Geoghegan v Harris [2000] 3 IR 536 - reasonable patient test introduced yet not fully accepted

Question 9

• The risk of this rare occurrence had been mentioned by the surgeon before the operation. The trial judge held that he had been given a proper warning, but in the Supreme Court, on appeal, the plaintiff argued that this warning was only given 30 minutes before he entered the operating theatre, and that this was too late for him to give effective consent.
  
  • Q: How much time does the patient need?
• if there is a significant risk which would affect the judgment of a reasonable patient, then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk
  
  • reasonable patient test- away from how severe & how frequent
  • significant and material interchangeable
• J held that the warning of the risk was adequate, because even though it was only 30 minutes before he was brought into the operating theatre, he was relaxed, was not anxious, and was able to deal with the warning effectively at that time, thereby giving his valid consent

Answer 9

Fitzpatrick v White [2007] IESC 51, [2008] 3 IR 551 - last Irish case

Question 10

• Claimant argued that she was not warned of a small but significant risk of spine condition developing.
  
  • not clear causation- said she would still have had surgery regardless- but due to societal pressures to move the test to be move pro-patient, the causation Q was overlooked
• A surgeon owes a legal duty to a patient to warn him or her in general terms of possible serious risks involved in the procedure
  
  • Therapeutical exception: The only qualification is that there may be wholly exceptional cases where objectively in the best interests of the patient the surgeon may be excused from giving a warning. (irrelevant in this case)
  • 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
• every individual of adult years and sound mind has a right to decide what may or may not be done with his or her body. Individuals have a right to make important medical decisions affecting their lives for themselves: they have the right to make decisions which doctors regard as ill advised
  
  • HR considered- humans have right to do things even if they are not in our best interest

Answer 10

Chester v Afshar [2005] 1 AC 134

Question 11

• establishes need for proper dialogue - only in UK - extremely pro-patient
• Failure to warn of risks and failure to advise of alternative treatments where the claimant was pregnant, and, because the claimant was diabetic, it was thought that she might give birth to a larger than average baby
• patient very smart, studied bio, mum and sis medics
• The doctor failed to warn her of a 9-10 per cent risk of shoulder dystocia and c-section
• went with natural delivery and baby boy born disabled - argued she would have opted for c-section if she was told
• doctov POV: small risk, does not want everyone to have c-section
• first instance court: patient should have asked questions, Bolam applied
• Appeal to SC: REVERSED
  
  • court strongly emphasised autonomy of the patient, and endorsed the decision in Chester v Afshar
  • ‘[a]n adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken.’
  • The significance of a given risk is likely to reflect a variety of factors besides its magnitude -The assessment is therefore fact- sensitive, and sensitive also to the characteristics of the patient
  • doctors should have meaningful dialogue with patients
  • therapeutic exception still exists
  • problem: less legal certainty for doctors - how are they supposed to know nuances of every patient?

Answer 11

Montgomery v Lanarkshire Health Board [2015] UKSC 11