Tipp FM Legal Slot – 26th June 2012
Gillian O’Mahony May 2012 Q&A Review
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Download May Q & A Review Notes
Medical Negligence
Remind us again, what is Medical Negligence?
Medical negligence is a rapidly expanding area of litigation in Ireland. Medical Negligence is essentially an act or omission by a health care professional which is below the accepted standard of care and which results in injury or death to a patient.
How does Medical Negligence occur?
Medical negligence can happen because of:
- Diagnosis – i.e. misdiagnosis or delayed diagnosis;
- Treatment – i.e. errors in the medical treatment such as incorrect medication, surgical errors, exposure to infection (MRSA etc) or;
- Disclosure – i.e. failure to inform the patient of the risks of the treatment of procedure.
I will now give examples of medical negligence in the context of diagnosis and treatment and disclosure.
Give listeners an example of how medical negligence could occur though – Diagnosis – i.e. misdiagnosis or delayed diagnosis
In one case a patient died of a brain haemorrhage. He attended his GP several times before his death complaining of headaches. He was sent to casualty but was not admitted and the next day he was admitted again, unconscious, and died soon after. The High Court found that the GP was negligent because he did not take into account the man’s version of events and his detailed accounts of the seriousness of his symptoms. The Supreme Court also found in favour of the plaintiff, but on the grounds that where the casualty officer ignores and does not follow up on a referral letter, it is an “inherently defective” practice and is negligent.
Cancer Misdiagnosis
The majority of people who undergo x-rays and blood tests for cancer in Ireland are correctly diagnosed. Early detection is vital as it enables timely medical treatment, and in many cases the patient can be cured. There are unfortunately many cancer sufferers who are misdiagnosed as not having cancer. Our experience in dealing with these cases shows that there are several reasons why a cancer misdiagnosis can occur – most of them as a result of human error or a lack of skill. A doctor may not respond appropriately when a patient presents displaying symptoms of cancer- there may be a failure to thoroughly examine or a failure to recognise the symptoms and signs of cancer. There may be a failure to refer to a cancer specialist or a failure to appropriately monitor a patient who has a family history of cancer. In a great number of cases that have come before the Courts it has been shown that laboratory results and scans are often misinterpreted by technicians too frequently.
How could the treatment – i.e. errors in the medical treatment such as incorrect medication, surgical errors, exposure to infection (MRSA etc) – a patient receives amount to medical negligence?
In another case the Plaintiff’s husband had surgery to remove a tumour in his throat. On the second night after the surgery the tracheotomy tube was put out of place. By the time the airway passage was established the man was brain dead. The case was brought on the grounds that the surgeon allowed his patient to recover in ICU where there was no-one trained to replace a tracheotomy tube. The defendants disputed liability on principle of “general and approved practice”. The Court acknowledged that nurses in Ireland are not specially trained to change tubes of this type and that no negligence therefore arose on this point. However, he also noted that this was an emergency situation which required special training. The Court found that failure to have a person, nurse or doctor in the ICU who was trained in the replacement of a tracheotomy tube, under the circumstances, was an “inherent defect”. The surgeon was found guilty of negligence because the deceased would not have died if a trained person been present in ICU.
How could medical negligence occur due to Disclosure – i.e. failure to inform the patient of the risks of the treatment of procedure?
An example of a case due to a failure to disclose arose in 2000. The Plaintiff underwent bone graft for a dental implant procedure. This resulted in damage to a nerve in his chin and he suffered chronic persistent neuropathetic pain. Before the operation the practitioner told the plaintiff that there was no guarantee that there wouldn’t be unforeseen complications. However, he did not disclose to the plaintiff that there was a risk of the chronic neuropathetic pain, which resulted. Expert witnesses said the risk of damaging the nerve was too remote to require disclosure. In the High Court Kenny J held that since the injury was a known and foreseeable consequence of damaging a nerve, the fact that it was unlikely was irrelevant. He adopted the “reasonable patient assessment of disclosure”, which is used by the courts in America and Canada. This means that the standards of disclosure for medical practitioners should be set by patients instead of set by doctors for doctors. In his judgment Kearns J said that all material risks should be disclosed by doctors and they must consider:
- the severity of the consequences
- the frequency of risk
- the plaintiff’s particular circumstances prior to the surgery.
The plaintiff failed to recover damages because although the defendant had breached the duty to disclose, the plaintiff had failed to establish a connection between the non-disclosure and the injury. The court referred to the evidence given that the Plaintiff had been reluctant to attend pre-operation consultations. This reluctance made all the difference.
How would listeners know if they have a claim in Medical Negligence?
If you, or a family member, have suffered injury due to the actions or inactions of a medical professional you may be entitled to compensation. You will be able to discuss the facts of your situation, in detail, with a member of our medical negligence team. As experts in the area of medical negligence litigation, we will assess your complaint and assist you in reaching a decision on whether to make the claim or at the very least investigating it further.
How is Medical Negligence proven?
There are four main steps in proving medical negligence:
- Duty of Care – a legal duty is owed whenever a health care provider or hospital undertakes to treat a patient;
- Breach of Duty of Care – it must be shown that the health care provider in question failed to follow the relevant standard of care;
- Injury – the breach of duty must have caused injury and;
- Damage – Regardless of whether or not the health care provider was negligent, there is no basis for a claim in negligence without damage, be it monetary, physical or emotional.
When you have a client who believes s/he has a Medical Negligence case what steps do you, as the solicitor, take to establish a possible case or “cause of action”?
Medical negligence claims, in a similar way to personal injury claims, are made up of a series of hurdles. If you do not clear the first hurdle you cannot move on to the next. To establish a case in medical negligence we need to take these steps:
- Take up copies of all medical records and check them. In some cases we may even send them to a medical records expert for analysis;
- Write to the doctor, health care professional or institution we believe is responsible for the injuries caused;
- Medical experts specialising in the particular area of medicine involved will then be asked to consider whether or not the treatment received was negligent or sub-standard and if so the extent of the damage it caused.
- If we consider that we have enough evidence to prove a case of medical negligence, then we advise starting court proceedings immediately.
- Clinical negligence cases can be settled by negotiation without the need to proceed to a full trial but they are rarely resolved without starting court action.
Party Walls /Structures
A few weeks ago John Lynch spoke about party walls on the show, remind us again what is a party structure?
A party structure is the term used to describe the wall, hedge, fencing, or building which is on, or close to, the boundary between two properties. It is essentially the structure which creates the physical division between two properties.
A party wall/structure may be either on your neighbour’s property or on the boundary which divides the two properties.
It is generally the case that the adjoining property owners jointly own the party structure and neither of them can make a unilateral decision to significantly alter or remove the party structure.
Party structures have been problematic in the past, particularly so when it came to the maintenance and the carrying out of repairs to them so the 2009 Act addressed and sought to clarify the law in relation to party structures.
The law entitles a person to carry out work to the party structures including for example alterations, repairs and maintenance, decoration, replacement and strengthening.
If I am the person who wants the works to be carried out to the party wall are there any conditions I should know about before I begin?
If you cause damage to your neighbour’s property while carrying out work to the party structure, you must repair the damage or pay for the cost of the repair work carried out by your neighbour. If a property owner carries out work to the party wall and fails to repair any damage to his neighbour’s property the law allows the neighbour to apply to the court for an order to compel the damage to be fixed.
You must cover the costs of professional advice sought by your neighbour regarding the likely consequences of the works you intend to carry out and reasonable compensation for the inconvenience caused to your neighbour. Compensation might be relevant if the works to the party wall or structure cause disruption to the neighbour’s business.
Do I still have to pay compensation if the works I am carrying out will benefit my adjoining neighbour/owner?
If the works you are going to carry out will be of benefit to your neighbour you may be able to claim a contribution from them or reduce the amount of compensation payable to them to reflect the benefit s/he will gain in the enjoyment of his property because of the carrying out of the works.
A neighbour might refuse to allow works to be carried out or obstruct the carrying out of works to the party structure. Prior to the 2009 Act a situation like this might well have escalated into a long and protracted row between two neighbours but the Act has introduced a procedure that can be activated through the District Court which lets the judge decide upon the situation.
What is a “Works Order”?
“The Works Order”
If a dispute arises now between neighbours, in relation to a party structure by virtue of the 2009 Act, the person who wants to carry out the work can apply to the District Court for what is known as a “Works Order”, or in other words, permission to go ahead with the work.
In these circumstances the court can impose any terms and conditions that it sees fit when making an order authorising the work – the Court will take into account the individual circumstances of each case.
To protect the neighbour whose property will be affected by the carrying out of the work the property owner may be required by the Court to give security for any loss or damage that might arise as a result of the work. This could take the form of a lodgment of money which will pay for any damage caused to the neighbour’s property.
The Court can make an order entitling the property owner who intends to carry out the work access to his neighbour’s property for the purposes of carrying out the work.
The provisions in the Land and Conveyancing Law Reform Act 2009 pave the way for a more straightforward and streamlined mechanism for dealing with party structures, it is still important to bear in mind that the best way to approach any changes to party walls/structures with your neighbours is to discuss the changes first and to aim to carry out any works with their understanding and consent.
