Professional and medical negligence Flashcards
Professional Negligence
if a professional fails to to exercise a reasonable degree of care and skill, and a person suffers harm or loss as a result that person is entitled to sue to recover those losses in law.
These persons in their professional capacity have a duty to exercise proper care and skill when providing services to their clients and where they fall below this standard, they will be held liable for any damage as a result
what is a profession?
‘a profession’ is something which had yet to be outlined by the courts.
The traditional view has been that professions are characterised by the specialised intellectual nature of the work involved, the underlying moral duty to their clients and the high social status attaching to their members and persons who hold themselves out to be professionals have traditionally held to be persons such as solicitors, accountants, financial advisors/planners, doctors and engineers
what difficulty presents itself in professional negligence cases?
the judge does not necessarily have expertise in such matters and can only be guided by the experts who give evidence in the case.
what is the standard of care required for a doctor
a doctors professional duty of care is primarily to the patient and that duty arises once either the hospital or the doctor themselves assumes responsibility for that patient
The court applies a test of whether the doctor has behaved reasonably in the cirumstances
Irish test for diagnosis and treatment
Dunne v. National Maternity Hospital
- Was the doctor guilty of such failure that no medical
practitioner of equal skill or specialist knowledge could be guilty of if exercising ordinary care. - If he deviated from a general and approved practice, this will not establish negligence unless it is also
proven that the course he did take was one that no medical practitioner of like specialisation and skill
would take. - No defence to say conduct was in accordance with customary practice especially if it can be shown it had inherent and obvious defects
- Not negligent if the course taken complied with the careful conduct of a doctor of like skill and expertise
- An honest difference of opinion between doctors as ti which two ways of treating a patient does not provide any grounds for leaving it to a jury as to whether a person has followed one course rather than another has been negligent
if there is an issue of fact to be determined to decide if a practice is one of general application then the fact should be left to the jury
error of judgement
The law accepts that a doctor will not be liable where he or she makes an error or judgment, provided that the error was no an unreasonable one.
what was held in the case of Morrissey v HSE in relation to standard of care ?
Clarke CJ held that it is not for the Ct. to determine the standard of care of a practitioner, it is a matter
of evidence.
disclosure and informed consent
in light of the doctrine of patient autonomy, a doctor’s failure to disclose treatment risks and relevant medical information prior to the patient undergoing medical treatment has been accepted throughout the common law as being wrongful and actionable in tort.
Right to bodily integrity and the right to have ones bodily integrity protected by invasion by others.
The professional standard approach
This reflects the professional’s point of view and requires merely that the doctor’s liability is limited to disclosures that a health professional, practicing as a specialist in that field would make under the same or similar circumstances
The reasonable patient approach
This test reflects the patient’s point of view and requires disclosure of all facts, risks, and alternatives that a reasonable person in the patient’s situation would consider important in deciding whether or not to have a recommended treatment.
what was significant about the case of walsh v Family planning services?
Mr walsh was left with long term pain after a vasectomy.
The court had to decide whether Mr Walsh should have been warned about the possibility of such an usual potential consequence and the judges disagreed as ti the test to be applied.
whether the professional standard approach or the The reasonable patient approach
what did the judge find in the case of Geoghegan v Harris?
The judge found that in an elective procedure, the practitioner must disclose all known risks of grave consequence or severe pain, no matter however remote.
Kearns J favoured the material disclosure test
what is the material disclosure test?
The material disclosure test mandates disclosure of all risk where what is at stake is the risk of serious injury or death and the materiality includes the severity of consequence and the statistical frequency of risk
what is a criticism of Geoghegan?
An obligation to disclose all possible complications no matter how minimal would be too onerous but a obligation to disclose complications resulting in grave consequence or severe pain is reasonable
What are the facts of Cottstain v maguire?
The plaintiff’s husband underwent a procedure to insert a tracheotomy tube to enable him to breathe. After the operation, the plaintiff’s husband was taken to the ICU where the tracheotomy tube became dislodged and there was no nurse or doctor present who was trained in the replacement of the tracheotomy tubes and the patient died
It was held that
(1) the failure to have a doctor or nurse trained in the replacement of tracheotomy tubes was an inherent defect in practice
(2) The defendant bore overall responsibility for the plaintiff’s husband and if there was no one in the ICU trained to deal with the possibility of dislodgment of the tracheotomy tube then he was legally responsible for the failure
