Professional Negligence Flashcards
Where does a solicitor owe a duty to care to a third party?
(1) the solicitor must assume responsibility for the advice or information furnished to the third party.
(2) the solicitor must let it be known to the third party expressly or impliedly that he claims, by reason of his calling, to have the requisite skill or knowledge to give the advice or furnish the information;
(3) the third party must have relied upon that advice or information as a matter for which the solicitor has assumed personal responsibility; and
(4) the solicitor must have been aware that the third party was likely so to rely.”
O’Carroll v. Diamond [
a wife had to consent to a charge on and the sale of the family home. The solicitor was acting for her husband and advised the wife to seek independent legal advice. The wife, however, indicated she was prepared to consent to the charge on the family home and the sale thereof. The Supreme Court in this case found the solicitor had done all he reasonably could have done but that in some cases a solicitor may not discharge his duty merely by advising a client to seek independent legal advice and depending on the circumstances a solicitor may be required to decline to act until such advice is taken.
What is the standard of care for a professional?
The general duty of care in negligence is to take reasonable care to avoid injury to one’s neighbour, and the standard of care is that of the ordinary reasonable person. In the context of professional negligence, the standard of care is that of the reasonable professional.
What are the five general principles set out in Dunne v. National Maternity Hospital
- 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.
- 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.
- 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.
- 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.
- 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 …
Dunne v. National Maternity Hospital [
the infant plaintiff’s mother was pregnant with twins. One of the twins was born dead and the other twin, the infant plaintiff, was born brain damaged. The medical experts on behalf of the plaintiff were of the opinion that in the case of twins the general and approved medical practice was to attempt to identify and monitor both foetal hearts during labour, and that to seek to identify merely one was not acceptable practice. The obstetrician in fact had only monitored one foetal heartbeat contending that was the general practice of the hospital in question.
Morrissey v. HSE & Ors
his case concerned an allegation of negligence against the defendants for failing to correctly report on two cervical
smear tests, following which the plaintiff was diagnosed with cancer. The plaintiff later received a terminal diagnosis.
Roche
he plaintiffs contracted with a builder to build a house, but the builder was responsible for defective work and could not complete the building. The building company went into liquidation and it emerged that Lombard and Ulster Bank had an equitable mortgage on the land. The liquidator granted a lease of the land to the plaintiffs, but the mortgagee refused to release the certificate of title to allow the registration of the lease until it was paid £6,000.00 on foot of the mortgage. Unaware of the charge, the plaintiffs had made stage
payments to the building company in relation to the building of the house. The defendants were the plaintiffs’ solicitors. They did not execute a search against the building company in the Companies Office as it was the universal conveyancing practice at the time not to do so. Had they done so, they would have become aware of the mortgage. In the High Court, the plaintiffs claimed damages for negligence and breach of contract against the defendants. The High Court found the defendants were not negligent as they had followed universal conveyancing practice. On appeal to the Supreme Court it was held that as the universal conveyancing practice relied upon by the defendants had inherent defects which ought to have been obvious to any person giving the matter due consideration, that the defendants were negligent in failing to execute a search in the Companies Office. Henchy J said, “the practice in question was fraught with peril for [the] client and was readily avoidable or remediable”
Collins v. Mid-Western Health Board
plaintiff’s husband was taken ill and attended the second named defendant who was not his family doctor. The plaintiff’s condition did not improve, and he attended his own GP who immediately arranged for his admission to hospital. When the plaintiff’s husband presented to the hospital, he was examined by a junior hospital doctor who took the view that the plaintiff’s husband needed further examination by a specialist and sent him home. The plaintiff’s husband suffered a severe brain haemorrhage and was admitted to hospital as an emergency case. A short time later he died.
It was also held that an admissions system which allowed a junior hospital doctor to disregard the opinion of an experienced general practitioner clearly suffered from an inherent defect.
Coughlan v. Whelton
Drs do not need to get the right diagnosis every time.
Doctor could not be guilty of negligence where he “carried out all appropriate tests and all of those tests proved normal” even though the doctor could not diagnose the patient had Hodgkin’s disease.
Fitzpatrick v. The Midlands Health Board
Negligence in Treatment
the plaintiff was treated for an injury to his finger. His condition worsened after treatment. The plaintiff claimed that the doctor who first treated his injury should have prescribed antibiotics earlier.
here was no disagreement between the experts that the delay in prescribing antibiotics after the test results had come back was unreasonable. Johnson J (as he then was) accepted the expert opinion and found the delay was negligent and this had exacerbated the plaintiff’s injuries.
What about new treatments that diverge from the Generally Approved Practices?
Where a technique or treatment is new, however, the informed consent of the patient will limit the defendant’s liability.
Informed Consent
Failure to warn a patient of certain risks inherent in a medical treatment or procedure may amount to negligence. In such circumstances, the plaintiff may claim they did not give informed consent. There is a divergence of opinion as to whether the issue of disclosure of risk should be judged according to what a reasonable doctor would be expected to disclose (the “professional standard”) or according to what a reasonable patient would expect to be disclosed (the “patient standard”)
Walsh v. Family Planning Services Limited
It was held there is a duty on a doctor to disclose a risk of surgery which would involve “ongoing severe pain involving further operations”, i.e., a material risk. The plaintiff underwent an elective vasectomy procedure and suffered a rare but serious disease.
Fitzpatrick v. National Maternity Hospital
it was held the doctor was negligent in not informing the mother in sufficiently stark terms of the seriousness of her condition and warning her of the risk to the life of her baby if she did not consent to a certain method of delivery. Herbert J was of the view if the mother had been made aware of the true nature of the situation she would have consented to the suggested procedures for the delivery of the baby.
Hegarty v. Mercy University Hospital Cork
accepted that there was a duty on a doctor to “furnish the plaintiff with accurate information regarding his condition and to keep him appraised of all significant developments in relation to his health”. On the other hand there is no need to disclose to the patient the results of every medical test if this would impose “an insuperable burden on medical and nursing staff”
