When is medical treatment negligent?

In order to be entitled to compensation, a claimant must show that the medical practitioner has liability to them in negligence and that there is what is referred to as ‘causation’ between that negligent behaviour and the injuries actually suffered.  We, therefore, need to consider the concepts of liability and causation in turn.

Liability

To successfully prosecute a medical negligence claim you must first satisfy a court that one or more of the medical practitioners who has been treating you has failed to exercise due skill and care in carrying out their professional duties.  The test in Ireland for determining whether the appropriate standard of care has been delivered by a medical practitioner was handed down by the Supreme Court in 1991 in the case of Dunne v. the National Maternity Hospital.

While many chunky legal texts have been written about what has become known as ‘the Dunne principles’, they can be summarised for the purpose of this layperson’s overview of the area as stating that a medical professional will only be deemed to have been negligent if it can be shown that they were guilty of a failure which was so unacceptable that no other practitioner with the same level of skill and expertise would have behaved in the same manner if acting with ordinary care.

The courts are understandably very anxious to avoid creating a culture of ‘defensive medicine’ where a practitioner’s principal consideration of looking after their patient’s health becomes hijacked by the practice of administering treatment in a manner which is least likely to result in legal liability being established.  Judges are also anxious to ensure that they don’t engage in being wise after the event, being cognisant of the fact that doctors often have to make very complicated decisions in emergency situations.

For these reasons, significant deference is given to medical practitioners.  Opinions between experts as to what constitutes acceptable practice can often vary, and as long as a doctor can show that there is a respectable body of practitioners who would not deem the behaviour complained of to have fallen below an acceptable standard, they will be found by a court not to have been negligent, even if there is another (possibly much larger) school of practitioners who believes that the behaviour did not constitute proper practice.

Causation

Even where it can be established with relative ease that a medical practitioner’s behaviour has fallen below the acceptable standard to the point where they were negligent, proving this, of itself, will not entitle a claimant to be compensated.

The claimant must go on to prove that, on the balance of probabilities, the negligent actions of the doctor or other healthcare professional actually caused the injuries which they have suffered from.  In other words, they must satisfy a court that it’s more likely than not (i.e. that there was a percentage chance of greater than 50%) that the substandard treatment was the direct cause of the harm occasioned to them.

This might sound like an almost philosophical exercise but, in fact, it’s the reason why many patients will fail in their claims, notwithstanding the fact that they have received shoddy medical treatment.

Perhaps the best way of highlighting how causation can result in the difference between a successful and an unsuccessful claim is to consider the facts in the case of Barnett v. Chelsea and Kensington Hospital Management Committee which is one of the most important decisions in this area.

In that case, a patient attended at the A & E department of the hospital in question complaining of vomiting but the doctor on call refused to see him and he was sent home, where he later died.  Post mortem examinations revealed that he was suffering from arsenic poisoning.  The poor man’s widow was successful in proving that the A & E doctor had been guilty of negligence, as no responsible medical practitioner would have refused to see the patient.

But the court then had to decide whether or not that negligence had affected the patient’s outcome. On this point, it decided that the claim must fail because there was uncontested evidence adduced that, even if the patient had been attended to promptly at the A & E department on that fateful night, he was beyond treatment at that stage and would still have died as there was too great a gap in time between his ingestion of the arsenic and his attending at the hospital.

So, even if you can show that you have been subjected to what might be completely unacceptable substandard treatment, that fact alone will not entitle you to compensation.  You’ve also got to go on to prove that the negligent treatment gave rise to your injury.

What if the treatment of more than one person is the cause of my injuries?

There are often instances in medical negligence cases where more than one medical professional contributes to the injury sustained.  Consider, for example, a situation where a patient presents themselves at A & E and is negligently prescribed inappropriate medication causing them to fall ill.  If they then attend at their GP’s clinic and their GP fails to diagnose their illness properly, with this delay in making a correct diagnosis exacerbating their condition, a detailed consideration of each medical practitioner’s involvement will need to be undertaken so that the complicated process of apportioning liability can be undertaken.

For this reason, it’s absolutely vital that your legal team ensures that all appropriate parties are named in your proceedings.  If one or more parties are pursued but another who contributed to the injury is not, you may only be entitled to recover a fraction of the full worth of your claim and you could also find yourself liable to pay some of the defence costs of the proceedings.

Could I be found to be partly to blame for what has happened to me?

Where a finding of medical negligence which gives rise to injury is made by a court, this will entitle the patient to be compensated for their loss and suffering.  However, if the defence can show that the patient has in any way exacerbated the injury which has been occasioned to them by their own acts or omissions (such as, for example, failing to turn up for follow-up medical appointments, failing to take medication which has been prescribed, or consuming alcohol when they have been advised against this) the court may go on to find that the claimant is guilty of what is referred to as ‘contributory negligence.’

In such circumstances, the court will go on to assess the extent to which the behaviour of the patient has contributed to the problem and it will then reduce the amount of compensation accordingly.  For example, if a judge determined that a victim of medical negligence was 25% liable for the injuries which they had suffered and if the court believed that the appropriate amount of compensation for the injuries was €100,000, this amount of compensation would be reduced by a percentage commensurate with the extent of the contributory negligence, with €25,000 being disallowed, resulting in a net compensation payment of €75,000.

*In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.

John McCarthy specialises in personal injury and medical negligence claims. His practice focuses on high-value compensation cases. John qualified as a solicitor in 2003 and holds a diploma in civil litigation. This specialist qualification in the area of personal injury and medical negligence litigation, is awarded by the Law Society of Ireland.