Professional Negligence Flashcards
Bolam v Friern Hsopital
- P suffered fractires following electro-convulsive therapy
- alleged negligence in manner it was carried out
- ‘Doctor knows best’ approach
- Look at customery practices in professionals
- no negligence if generally approved practice amongst professionals
- liability based in general & approved practice (GAP)
Bolitho
- acknowledged need for a legal standard that judges could indentify
- one doctor agreed, 5 opposed doctor’s actions
- court went against majority
- showed that proving GAP is not a final means of proving an absence of negligence
O’Donovan v Cork County Council
- ‘if there is a common practice which has inherent defects, which ought to be obvious to any person giving the matter due consideration, the fact that it is shown to have been widely and generally adopted over a period of time does not make the practice any the less negligent’
Dunne v National Maternity Hospital
- Sets out the test for establishing negligence in all professions
- the medical professional must apply a standard appropriate to a person of equal specialist or general status acting with ordinary care
Professional principles set out in Dunne
1) Totally indefensible
2) Deviation does not automatically give rise to negligence
3) Not inherintly defective
4) an honest difference of opinion is not necessarily negligence
5) not for court ro decide form of treatment
6) need not be universal
Kearney v McQuillan
- Procedure performed after birth which was not needed
- Done out of fear that she would not be able to give birth in the future
O’Callaghan v Downling
Physician not liable in using alternative treatment where new improved treatment available
Farrell v Ryan
Differing opinions on where mother was struggling to give birth
Morrissey v HSE
- The ‘absolute confidence test’
- Under this approach, the reasonably competent screener must
i) Declare that the sample provided is sufficient to carry out the test, and
2) Not have any doubt whether the sample is normal before declaring it ‘clear’
Anderson v Birthistle
- No temporary pacemaker given to individual
- 50% of hospitals had them
- no negligence when patient fainted and hit head
Gottstein v Maguire
- Patient incubated after operation
- Sent to ward, nobody working there who could reinsert tube
- By the time someone got there to fix it, he had suffered brain injuries that led to death
- Negligence found
Collins v Mid-Western HB
GP’s are not consultants, so must adhere to that boundary
Kiernan v HSE
Nurses now held to the same standard of GAP and professional standard
Walsh v Family Planning
- Not a trespass claim as consent has been given
- Court held that doctor must disclose all risk if it may include serious pain or further surgery
Geoghan v Harris
- Held reasonable patient standard
- Do not need to disclose if the reasonable patient would consider it something that may stop them from taking procedure
Montogmery v Lancashire Health Board
- Mother having trouble giving birth
- Advised that forceps delivery was best option
- Baby suffered damage
- Never told that she could have a C-section
Court held that the doctor should have disclosed alternatives
Fitzpatrick v White
- P has squint in left eye
- Only when he was in his gown ready to get operation that the doctor said that the operation could make it worse
- Consented to procedure but sued after it was further Court held that the physician is only liable if there is a risk of injury
- This was only cosmetic
Wall v Hegarty
- May apply for third parties
- P inheriting under a will
- Solicitor messed up and he got nothing
However he was not the plaintiff’s solicitor
Finlay v Murtagh
- Extends to those that may benefit
- Knows or ought to know the effects it will have on the third party
Smith v McCarthy
- plaintiff sued parents’ solicitor
□ Lost fortune under property - Nothing left for her to inherit after his negligence
- Court held no proximity
ACC v Johnston
- Solicitor got undertakings from other solicitor to register mortgage
- Never did
- Second loan came along without seeing if mortgage was secured
- Bank could not rely on the undertakings unless they were directly made to the bank
Barker v Baxendale-Walker Solicitors
- Solicitor interpreted tax law in a different way
- Led to his client losing money after investment
- Court held that the solicitor’s interpretation of the law was not one that the competent professional would fail to see
- However, the solicitor should have advised that the particular law was not straightforward and that there was a risk of failure
