Tipp FM Legal Slot – 28th August 2012
Gillian O’Mahony on Professional Negligence[soundcloud id=’167071131′]
The first question that you have to ask is what is a Professional?
The term “professional negligence” is a complicated one to define. It relates to a professional occupation that has a duty of care to its clients, where the professional has been neglectful in his duties and the client has consequently suffered some form of loss – in most cases physical or financial.
A comprehensive list of occupations would be hard to compile, as any professional whose services you contract owes you a duty of care. Where you have engaged a professional to provide a service for you, or where a service is assumed (such as with medical care ), professional negligence applies when that provider does not perform their duty with an appropriate level of skill and within a reasonable time.
Occupations most commonly cited for demonstrating professional negligence include medical professionals, Solicitors, Architects, surveyors.
What is Professional Negligence?
Professional negligence arises when the professional you have engaged to provide a service fails in their duty to provide that service through negligence.
What it comes down to is that it has to be shown that the standard of work or service provided by that professional was worse than you would reasonably expect from a professional working in the same circumstances of your case, and that you have indeed suffered a loss.
Can you give examples of Professional Negligence?
- Giving advice
- Failing to give advice
- Poor administration in litigation – choice of court , limitations etc
- Buying and Selling Property – requisitions; liquor licenses
- a delay in the exchange of contracts
- losing title documents
- failing to convey the proper lands Solicitors
- incorrectly designed/constructed property
- failure to identify property defects
- Poor advice
- negligent valuations
- Poor advice
- Provided incorrect tax advice
- Missed an important deadline
- Failed to advise properly on a matter for which he is instructed
Today I will revisit a particular area of professional negligence which we spoke about previously – Medical Negligence.
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 (MRSAetc) or;
- Disclosure – i.e. failure to inform the patient of the risks of the treatment of procedure.
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?
In proving medical negligence you must establish:
- 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.
The Irish legal system means that we reply on precedent decisions from the Courts. In the context of a medical negligence case the principles set out in the landmark Irish Decision of Dunne v National Maternity Hospital must be satisfied for a successful case. To keep it simple this decision said that a medical practitioner is not negligent unless they did something or failed to do something that no other practitioner of equal specialist would have done.
Cancer misdiagnosis is something that unfortunately occurs- how can this result in Medical negligence?
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.
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.