This seminar is designed to provide practical guidance to practitioners in a range of matters which fall to be considered in the conduct of a medical negligence action. It will examine capacity to consent as well as informed consent. It will highlight complexities in causation as well as existing and emerging trends in recent case law. The calculation of quantum in the context of the new Personal Injury Guidelines will also be considered. The seminar will be of interest to practitioners acting for either a plaintiff or a defendant.
Complexities in Causation in Medical Negligence Claims
Disputes in relation to causation are frequently of central importance in medical negligence actions. This section of the seminar will examine the principles and practicalities of establishing causation and how the chain of causation can be broken.
- The modification of the “but for” test in cumulative cause cases
- Material contribution to risk of injury versus material contribution to injury.
- Material contribution causation: Must the negligent act be the sole or principal cause of the injury?
- Must the innocent and guilty causes operate concurrently, or can the plaintiff still succeed if they operate successively? Williams v Bermuda Hospitals Board
- Is any contribution which falls outside the de minimus exception regarded as a material contribution?
- To what extent have the Irish Courts evinced support for “material contribution” causation in Medical Negligence
- Guilty and Innocent Damage: Apportionment:
- What happens if the judge is unable to apportion the damages? Is the plaintiff entitled to recover in full? Telles v South West Strategic Health Authority
- The implications for quantum if the plaintiff cannot demonstrate loss or damage of a different qualitative nature as a consequence of the proven negligence? Reaney V University Hospital of North Staffordshire NHS Trust
- Delays in diagnosis cases leading to loss of a chance of a cure.
Consent and Informed Consent
- Elements of Valid Consent: Fitzpatrick v K
- Are there any ‘Exceptions’?
- Refusal of consent: What if a patient’s decision is ‘irrational’ or not in their best interests?
- Unable to consent: What if the patient doesn’t have capacity to consent?
- What about emergencies and ‘necessity’? what are the boundaries of permitted treatment?
Informed Consent and Litigation
- The Disclosure of Risks:
- What information / risks must be disclosed to a patient? Geoghegan v Harris and the reasonable patient
- When must they be disclosed? Is there an elective vs non-elective distinction? Fitzpatrick v Eye and Ear Hospital
- Who must disclose them?
- How must they be disclosed?
- What is the relevance and impact of Montgomery v Lanarkshire Health Board?
- What does all of this mean in practice for healthcare practitioners and the practice of medicine?
- How can Health Care Professionals avoid litigation?
- The ‘Dos and Don’ts’ of consent
- How is informed consent actually dealt with in medical litigation?
- The challenge of causation
A Review of Recent Case Law
- Renewal of a summons: Does the general “tightening up” approach of the courts in the cases of dismissal for want of prosecution also apply to cases involving an application to renew a summons? Murphy v HSE; Brereton v Governors of the National Maternity Hospital; Young v St. Vincent’s Healthcare Group Limited
- Can the requirement for reasonable grounds to commence proceedings be satisfied other than by way of a formal expert report? Mangan v Dockery
- Expert advice and its effect on limitation periods: when can such advice stop the clock? O’Sullivan v Ireland; Green v Hardiman.
- When might a court impose primary liability on a defendant on the basis of a “non-delegable” duty of care: Morrissey v HSE.
A Guide to the Calculation of Quantum: The Book of Quantum v The Personal Injuries Guidelines
This section of the seminar will look at the “old system” of calculating General Damages in this Jurisdiction, the Book of Quantum, and compare it to the “new system”: the Judicial Council’s Personal Injuries Guidelines. In particular, it will focus on the following:
- What was the “old system” and what were the previous obligations on the Court to consider the Book of Quantum.
- Does the “old system” still apply in some cases?
- The imposition of Personal Injuries Guidelines.
- The implications of the “new system” for Judges, Plaintiffs, Defendants and their Insurers.