Medical Negligence
DEVELOPMENTS IN MEDICAL NEGLIGENCE
In this article the issue of Medical Negligence will be discussed in detail. Particular attention will be paid to recent cases where plaintiffs succeeded in establishing that hospitals and medical practitioners had breached their duty of care owed to patients regarding negligent treatment or diagnosis. It is also necessary to look at the recent debate regarding the doctrine of informed consent and the appropriate standard of care that should be applied by the courts.
Irish Medical Insurance Association ‘Medisec’ stated in its annual report for 2003 that it paid out over €32 million in Irish claims for medical negligence1. The Organisation says that this figure represents an increase of 300% from 2002. However as there remains a lack of reliable statistics on the number of medical negligence claims taken in Ireland each year it is difficult to determine whether the increase in medical negligence compensation claims is as dramatic as the 300% stated by the Organisation.
Breach of the Duty of Care
Doctors owe a duty of care to their patients and in some circumstances even to third parties. Under this duty of care patients have a legal right to presume that the care and attention they are receiving either by their G.P or whilst in hospital is of a certain standard. If the care given by medical professionals falls below a certain standard and patients suffer loss or harm as a result of a breach of the duty of care owed by a doctor, then patients may be advised to take a case in medical negligence. Many academics and legal practitioners believe that in medical negligence cases the question of accountability is often the main reason that patients sue their doctor2. Often patients have been through an unsatisfactory complaints procedure within the hospital and as a last resort take the litigation route.
Medical negligence cases can result from medical professionals breaching their duty of care regarding a number of different areas, such as
Error or delay in diagnosis
Failure to act on test results
Error in performance of a procedure
Error in administrating treatment or administrating drugs
Inadequate follow up
Failure to fully communicate the risks associated with procedures
In Ireland, recent successful medical negligence claims have been brought by or on behalf of patients who have suffered as a result of negligence in Accident & Emergency Departments, Surgical errors including those caused by Cosmetic or Elective procedures, Cancer Misdiagnosis and Neonatal conditions including claims on behalf of children who were born with defects such as Cerebal Palsy as a result of injury caused to them at birth.
Recent American Research
Recent American research has alarmingly shown a large amount of plaintiffs who had suffered unnecessary surgeries as a result of their medical practitioner’s negligence, with hysterectomory procedures being the most common example of unnecessary procedures occurring in America. Research found that in a sample of about 500 women, 70 of those women should not have received the surgery for any reason at all with a further 350 hysterectomies being performed without any tests to determine whether the surgery was appropriate for the particular women.3
Recent English Research
In a recent English Report ‘An Organisation with a Memory’ (Department of Health Expert Group, 2000) the British Chief Medical Officer listed a number of facts about adverse events associated with medical care in the National Health Service (NHS).
The report stated that in an average year there were
1150 suicides by people who had been in contact with the mental health services in the year prior to their death.
125 deaths of women 1 year after giving birth.
20,000 deaths within 30 days of surgery.
7800 still births and infant deaths.
The Chief Medical Officer in his report further cited evidence from the 1991 Harvard Medical Practice Survey and the 1995 Australian Health Care Study. These reports indicated that between 3.7% and 16.6% of in-patient episodes resulted in adverse harmful effects and between 0.7% and 3% of in-patient episodes resulted in death or permanent disability.4 According to British research the extrapolation of these figures to the NHS was reported to give between 314 000 and 1.4 million potential adverse events, based on 8.5 million in-patient episodes a year and 60,000-225,000 potential instances of permanent disability or death. These figures are extremely worrying, not only the potential harm to patients but also regarding the direct cost of treating those harmed by these adverse effects. The direct cost was estimated to be £2 billion in additional hospital days alone with a further £2.4 billion of potential liability from existing and expected claims. 5
Medical Negligence Procedures
In order for a plaintiff to succeed in a claim of medical negligence three conditions must be met.
The individual bringing the action must first show that he/ she was owed a duty of care.
Secondly it must be shown that this duty of care was breached by the failure on the part of the doctors/ hospital to provide the required standard of care.
Finally it must be shown that this failure caused the injury or loss, which was both foreseeable and reasonably avoidable. The current practice in Ireland is for plaintiffs to sue the consultant or most senior doctor looking after them as well as the hospital itself.
In medical negligence there are two distinct causes of action
Negligent diagnosis and/or treatment.
Breach of the doctrine of informed consent.
The duty to disclose has emerged as a distinct cause of action in negligence. Liability for non-disclosure of a risk is assessed under medical negligence law and the claim is independent of an allegation of a doctor’s negligence in diagnosis or treatment, although in reality both causes of action are often linked.
Statute of Limitations
Importantly plaintiffs must be aware that if they do feel that they may have a claim of medical negligence they must act quickly in seeking legal advice as under the Statute of Limitations medical negligence claims are statue barred after 2 years as a result of the Civil Liability and Courts Act 2004 . Plaintiffs must be warned that medical negligence claims are excluded from the scope of the Personal Injuries Assessment Board Act 2003. Under section 50 of the PIAB Act 2003 the period of limitation is frozen for a time beginning on the date of receipt of an application of a personal injury claim by PIAB and ending six months after the date that PIAB issues an authorisation or waiver in respect of the claim. As a result of section 50 of the PIAB Act, up to a further 18 months could be added on to the time limits for many personal injury claims, except for claims involving medical negligence. This means that medical negligence claims have a period of limitation much shorter than ordinary personal injury claims. The consequences of the 2003 Act can cause severe difficulties for plaintiffs and legal practitioners alike as medical negligence claims are much more complicated and difficult to investigate than straightforward personal injury claims6.
Negligent diagnosis and treatment.
It is necessary to first explain the duty of care owed by a doctor to his/her patients in relation to diagnosis and treatment.
The Irish Courts apply the professional standard model to all cases of medical negligence involving claims of negligent diagnosis or treatment. This professional standard test was laid down by the Supreme Court in the case of Dunne V National Maternity Hospital (1989).
The Supreme Court stated that the practitioner must act with the reasonable care of a practitioner of equal specialist skill and care. This means that medical professionals will be judged to the standard of other equally skilled and trained medical professionals or experts in their particular field. The court added that the general practice that is in question does not have to be universal in scope but must be used by a substantial number of doctors.
Plaintiffs must be also be aware that if a doctor does act in a manner which is contrary to the general and approved practice or takes a different or unusual course of action, the plaintiff must establish that this action is one which no medical practitioner of similar skill would have taken. Whilst doctors are not required to treat all patients successfully, they must act reasonably in providing treatment. Importantly the courts have held that doctors are under a duty to keep up to date with new developments regarding treatments and to keep up to date with developments in mainstream medical journals.
Recent Irish Negligent Treatment and Diagnosis Cases
It is clear from the Supreme Court decision in Dunne that it can be difficult for a plaintiff to succeed in medical negligence cases however there has been an increase in the number of successful claims in recent years.
In the case of Quinn v South Eastern Health ( 2002) the court had to consider whether the hospital and consultants were negligent in advising further complicated appendix surgery to a patient, when more conservative treatment such as antibiotics would have given her a greater chance of making a full recovery.
The High Court found that the Defendant had been negligent in performing the appendicectomy in the first place. Secondly the defendant was negligent in recommending remedial surgery too soon and finally the court found that the defendant had failed to compare the risks and benefits associated with surgery over the other more conservative options.
The issue of medical negligence arose again before the courts in the case of Pyne v Western Health Board (2005). This case was taken on behalf of an infant plaintiff who was born with severe brain damage as a result of suffering hypoxia during birth. In this case the plaintiff claimed that the doctor had wrongfully administered medication, in particular it was alleged that the defendant was negligent in administering a second tablet four hours after giving the first tablet. The recommended time to wait between tablets is 6-8 hours.
The High Court however held that there was no sufficient unity among hospital staff and practitioners regarding the use of the particular tablets to meet the standard laid down for negligence under the Dunne test. The Court did however find the hospital to be vicariously liable for the negligence of staff members who had failed to record and monitor the labour adequately which had resulted in the baby being born with severe birth defects.
In the case of Collins Mid Western Health Board (2001) the court reiterated the fact that a practice which is shown to have been widely and generally adopted over a period of time does not make the practice any less negligent.
This case involved a patient who died of a brain haemorrhage. The man attended his GP numerous times prior to his death complaining of headaches. He was sent to casualty by his doctor with a referral letter, however the casualty officer did not admit him. The next day he was admitted to casualty unconscious and died shortly after.
The High Court held that the GP was negligent for not taking into account the man’s wife’s version of events and her detailed accounts of the gravity of his symptoms.
However the Supreme Court did not agree with this decision, the court did also find in favour of the plaintiff but held that the practice whereby a casualty officer can ignore or does not follow up on a referral letter is an inherently defective practice and is therefore negligent.
The Doctrine of Informed Consent
It is now necessary to look at the doctrine of informed consent which relates to the duty on doctors to disclose all relevant and material facts to patients before operating on patients. The doctrine relates to the duty on doctors to advise, explain and disclose all medical information which will help a patient to be aware of the risks and consequences of the medical treatment and subsequently to give informed consent to such a procedure.
Under Irish law, doctors now owe a duty of care not only regarding the diagnosis and treatment of patients but also to adequately discuss the risks of procedures with patients. The Supreme Court first recognised the doctrine of informed consent in the case of Walsh v Family planning Services (1992).
Regarding the doctrine of informed consent, there remains high levels of debate over whether the standard to be applied is that of the professional standard model or whether the standard should be that of a ‘reasonable patient’.
In the seminal case on informed consent in Walsh v Family Planning Service, the Supreme Court was divided on the appropriate standard of disclosure. This case involved a plaintiff who had a vasectomy operation and suffered a rare but serious injury. The court concluded by holding that if the surgery is elective all known risks must be disclosed, however remote those injuries may be. However in this case the court held that the doctor had given sufficient warnings regarding the risks.
There is on-going debate as to whether the scope of the duty to disclose should be assessed according to what a reasonable patient would want disclosed in the given circumstances and not according to what is the standard procedure regarding disclosure is among the medical profession. The professional standard approach adopted by Finlay CJ in Walsh was affirmed by the Supreme Court in the case of Bolton v Blackrock Clinic (1994)
Reasonable Patient Test
In the recent case of Geoghan v Harris (2000), Kearns J in the High Court clearly stated his preference of the reasonable patient assessment of disclosure as favoured by the courts in America and Canada. In particular Kearns J mentioned the landmark American case of Canterbury v Space (1972) and the Canadian case of Reibl v Hughes (1980) where the courts held that the standards of disclosure should be set for medical practitioners by patients rather than standards being set for doctors by doctors.
In Geoghan v Harris, Kearns J in his judgment favoured the reasonable patient test and said that all material risks should be disclosed by doctors and they must have regard to
the severity of the consequences
the frequency of risk
the plaintiff’s particular circumstances prior to the surgery.
Causation and non-disclosure
However in Geoghan the plaintiff failed to recover damages because whilst the defendant had breached the duty to disclose, the plaintiff had failed to establish causation between non-disclosure and the injury. In particular the court referred to the evidence given that the Plaintiff had been reluctant to attend pre-operation consultations. The issue of non-disclosure and causation is important, and plaintiffs must be aware that causation must be proved between the nondisclosure and the injury suffered.
Similarly in the recent case of Winston v O’Leary (2006) the High Court held that the plaintiff had failed to prove causation between the injury caused and the defendant doctor’s failure to disclose the risk of on-going long term pain associated with vasectomy operations because of evidence before the court that even if the risks were disclosed the defendant would have gone ahead with the operation regardless.
The issue of informed consent and causation was discussed in detail by the House of Lords in the case of Chester v Afshan (2004) where the Court accepted that a more patient-friendly approach should be applied but the court highlighted the need to first set out clear guidelines to determine the application of a modified approach to causation in medical negligence cases.
It would appear from the foregoing that it is most important that a patient consults his legal advisor at the earliest opportunity where he feels he has been subject to medical negligence.
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