Medical negligence* litigation is an aspect of civil litigation which involves actions being commenced against medical practitioners and institutions for injuries suffered by a patient, or someone on their behalf, for injuries or damage suffered as a result of the professional’s negligence. Such actions may lie against a doctor, hospital, nurse, consultant or any other medical practitioner.
Sadly these cases are a part of every day life. The broad range of cases involve injuries at birth through to misdiagnosis or late diagnosis and complications from surgery.
In order to succeed, it must be shown the medical practitioner did not act with the same skill and care as would ordinarily be expected from another medical practitioner of equal status. This was established in the decision of Dunne (an Infant) v National Maternity Hospital & Another.
This particular case involved a child who was born with cerebral palsy. In his judgment, Finlay CJ set out the six main principles relating to medical negligence in Ireland. These are as follows:
(a) The true test for establishing negligence in diagnosis or treatment on the part of a medical practitioner is whether he has been proven 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.
(b) If the allegation of negligence against the medical practitioner is based on proof that he had 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 qualification.
(c) If a medical practitioner charged with negligence defends his conduct by establishing that he has followed a practice which was general, and which was approved by his colleagues of similar specialisation and skill, he cannot escape liability if in reply the Plaintiff establishes that such a practice had inherent defects which ought to have been obvious to any person giving the matter due consideration.
(d) An honest difference of opinion between doctors as to which is the better of the two ways of treating a patient does not provide any ground for leaving a question to the Judge as to whether a person who has followed one course rather than the other has been negligent.
(e) It is not for a Judge to decide which of two alternative courses of treatment is in his opinion preferable, but 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.
(f) If there is an issue of fact, the determination of which is necessary for the decision as to whether a particular medical practice is or is not general or approved within the meaning of these principles, that issue must in a trial held with a jury be left to the determination of the jury.
The above represents a very general overview of the law and each case must be reviewed on its own merits and in accordance with their particular facts.
If you need our advice on any of the issues relating to medical negligence, take comfort in the knowledge we are highly experienced in guiding our clients through this complex area of law. We always ensure that we are upfront and advise our clients throughout the entirety of their case about their likelihood of success. In every case, we engage the best possible medical professionals to assist us in properly establishing our client’s claims and investigating the extent of wrongdoing.
Please be aware that if you feel you have, or a someone close to you, has suffered due to poor medical treatment that you seek advice at the earliest opportunity as there are certain time limits involved in the establishing of claims.
At McIntyre O’Brien Solicitors, we are dedicated to fighting for our clients in their claims and providing the best possible legal advice and representation. We recognise these particular types of cases are obviously highly emotive with the injuries often being severely debilitating. This in turn can lead to extreme financial hardship and uncertainty as to what happened or what went wrong. We promise to find these answers for you by using all of our resources and legal knowledge.
If you require any advice or consultation in respect of the above, please contact us at our contact number of 074-9725105 or please feel free to email us at info@mcintyreobrien.ie and we responds to all of your questions or queries.
*In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.
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