We were mind boggled to learn that there are 4,000 adverse incidents in Irish Hospitals every month.

Now we know the statistic is wrong. It does not include the 58,000 adverse incidents from Tallaght Hospital.

A very large number of intelligent, knowledgeable, people must have known of the “systemic failure” in Tallaght. Every medical practitioner who read a Tallaght x-ray and acted on that reading knew that no confirmatory reading from a consultant radiologist had come to hand.

“Irish Health” reports;

“The remainder of the x-rays to be reviewed and reported on are understood to relate mainly to orthopaedics, and further new delayed diagnoses are thought to be unlikely at this stage.”

I imagine the reason for this is the tendency for failures to detect bone damage in x-rays to come to light by the pathetic return of the patient to the hospital with exacerbated injuries from neglect of the original injury.

It isn’t easy to generate readable prose on any subject, even one’s “own” subject. The principal difficulty is the depreciation of intellectual capital. We tend to learn what we know early in life and by the time we look authoritative we know less than we ever knew.

Maurice Neligan is a case in point. In the Irish Times he has opined about the trauma of medical negligence claims on doctors.

He shouldn’t bother, unless he has monitored the latest available information (in the self-same Irish Times!)

That shows there are more than 4,000 adverse incidents in Irish Hospitals each month. That’s more than 48,000 per year.

The trauma to concern us should be the trauma of the victim patients, not the trauma of the doctors.

Contrary to conventional thinking, the critical conversation is, often, not the conversation of the client with his/her solicitor, but the conversation of the solicitor with an expert.

This is definitely the case in medical negligence actions.

The issue in a medical negligence action is whether the defendant deviated from approved or appropriate practice. It is an error, usually, to think that the plaintiff will succeed if he/she proves that there would have been no injury had the defendant followed a different course of action. (The exceptional case where it would not be an error would be one where the court was persuaded that the conventional practice carried such obvious defects that it was indefensible and where the court effectively condemns the defendant and the practice.)

Thus, in the conversation with the expert, the solicitor is assessing the likelihood of the success of a defence claiming conventional merit for the defendant’s actions.

Incidentally, the solicitor is also assessing the quality of the expert.

Sometimes the quality of an expert shines out.

Former Supreme Court judge Donal Barrington, for instance, has seriously misled the general public (some) of the quality of our judges following his appearance on Nightly News with Vincent Browne. They have assumed that all our judges are of his high quality.

Would that it were so.

Often, in the conversation between the solicitor and the expert, the expert is not aware of any body of opinion supporting the defendant’s actions. This implies a criticism either of the expert or of the defendant.

It is the solicitor’s job to correctly judge whether the expert or the defendant is wrong.

Medical negligence litigation is unlike litigation generally. The cases throw up arguments about causation the like of which do not appear elsewhere.

In Bailey v The Ministry of Defence & Anor. [2008] EWCA Civ 883, the plaintiff suffered brain injury due to hypoxia. She was in the care of the defendants and suffered a heart attack when she aspirated her vomit. The heart attack deprived her of oxygen.

She had been very ill for some time. The illness reduced her capacity to deal with the vomiting.

The defendants denied that the plaintiff, in her litigation, had proved that anything they did or failed to do had caused her injury.

In fact the trial judge had found:

“One component was the weakness engendered by the pancreatitis, the other was the weakness engendered by the consequences of the negligence on 11 – 12 January, which led to a very stormy passage for the Claimant ending (purely from a surgical point of view) on 19 January when the packing of the liver was removed. Even leaving out of account the independent effect of the pancreatitis, it defies all common sense to say that she had recovered from the effects of all that by 26 January. I am satisfied, on the balance of probabilities, that she had not and that she was weakened as a result.”

The immediate cause of her injury was aspiration of the vomit; however she had been weakened and her cough reflex was unable to deal with that. The weakness followed from, inter alia, acts of negligence occurring during her care by the defendants.

The court in finding that this had contributed materially to the immediate cause of the injury found for the plaintiff against the defendant.

Litigation lawyers fight. If a lawyer is not generally fighting, he/she is not in litigation. Sometimes the lawyer is fighting for a plaintiff and sometimes the lawyer is fighting for the defendant.

Some lawyers find they invariably fight for plaintiffs and other lawyers find they invariably fight for defendants. The distribution of business in the “legal market for services” explains patterns like this.

Some firms of solicitors have one client only; an insurance company, say. The requirement of an insurance company (or a bank), for legal services, is substantial.

The fighting takes place in the context of legal proceedings.

What is it like to be involved in legal proceedings?

The answer is not straightforward; after all, what is the answer to the question, “What is it like to be in a fight?”.

It invites the reply, “What kind of a fight?”

There is no comparison between a soldier coming in to land on OMAHA BEACH in Normandy, on D-Day 1944, and a brawl in the local pub. Yet both are “fights”.

Or, to take another example, consider Gary Cooper in “HIGH NOON” with his shoot-out on the Main Street and compare it with the reality of the WILD WEST; most shootings consisted of sneak assassinations from darkened laneways.

Perhaps the term “fighting” is wrong; perhaps “contest” is closer to reality, as a description of what the process is like. If so, the phrase “unequal contest” springs to mind. Many legal proceedings are unequal contests.

The reasons for the inequality are many. From a lawyer’s point of view, the problem may be like that of a chess player drafted into the chess game after the game has started. Fatal strategic decisions may have been made and the positions on the CHESS board now reflect that.

By whom have the fatal mistakes been made? Possibly the opponent, possibly the lawyer’s client.

Metaphorically speaking, assume the fatal mistakes have been made by the opponent but the game is underway in a five-star hotel and will last ten days or thereabouts. You have a winning position, but do you have the money to book a room in the HOTEL for ten days?

Whatever about the strategic errors on the board, the opponent will immediately perceive your lack of resources and drag the game out. Like HENRY COOPER, you (metaphorically) have a weak eyebrow. The opponent will punch you there, you will bleed (metaphorically), and the referee will stop the fight, in his favour.

Furthermore, prior to that, being Henry Cooper, you have knocked your opponent down; he pleads, (to gain time and recover), that his gloves are torn, and he needs them replaced!

The High court has furnished some clarification of an important matter relating to the Personal Injuries Assessment Board Act 2003 (“the PIAB Act”), in Gunning v National Maternity Hospital & Ors.

There is provision in the PIAB Act (Section 17 (1) (b)) for the PIAB to decline to issue an assessment of compensation in respect of certain classes of injury. This, however, can relate only to claims that fall within the provisions of the PIAB Act. In Section 3 (d) of the PIAB Act, some actions for personal injury are excluded from the requirement to apply to the PIAB for an assessment. They are actions -

…arising out of the provision of any health service to a person, the carrying out of a medical or surgical procedure in relation to a person or the provision of any medical advice or treatment to a person”

The 1st Defendant in the action, the National Maternity Hospital, took issue with the alleged failure of the Plaintiff to procure a certificate from the PIAB under the PIAB Act, prior to the issuing of proceedings. (Where a certificate is required, the issue of the certificate is a condition precedent to the bringing of proceedings in court).

The Hospital argued that the pleadings in the action alleged a defect with, or in, a forceps used in the Hospital. It argued that a claim that a forceps was defective was not a medical negligence claim (“…the correctness or otherwise of the surgical procedure being carried out”), but was a defective product claim.

The court remarked on the arguments on the point as follows:

In my view, s. 3(d) of the Act of 2003 should be construed as applying to the factual circumstances out of which an action arises, rather than applying to the specific legal causes of action set out in the legal proceedings. I say this because if the latter approach is followed, it would result in some parts of the same grievance or complaint falling within the remit of the P.I.A.B and others falling outside. This would clearly be an undesirable situation, as it could result in two aspects of the same personal injury complaint proceeding in parallel in two jurisdictions, i.e. the Courts and the P.I.A.B.”

Although that is a valuable pointer, it is not now any more clear what the words “arising out of the provision of any health service to a person , the carrying out of a medical or surgical procedure in relation to a person or the provision of any medical advice or treatment to a person…” means, even in the context of “…factual circumstances…”.

Does it mean that only claims challenging the consequences flowing from the provision of such services are exempted by Section 3 (d) of the PIAB Act and not any arising in connection with the provision of such services?

If a patient in a Hospital or other health care setting slips and falls on the floor of the facility is he/she obliged to seek a certificate from the PIAB, or not? On the basis of Gunning v National Maternity Hospital & Ors, it would appear not. However, if a potential Plaintiff, taking no chances, applies for a certificate and the PIAB declines jurisdiction it would be open to the defendant Hospital or health care facility to plead that the Plaintiff had not complied with the PIAB Act. Gunning suggests that the practical solution is to treat the identity of the Defendant as indicative of the application of Section 3 (d) of the PIAB Act, but there must be a limit to that approach. Is there a difference between a patient slipping and falling in the corridor of a Hospital and the same patient (ex-patient?) being knocked down in the Hospital car park as he/she leaves?

Will the only relevant point of difference be the identity of the person causing the injury?

The logic in the title to this post is lurking in every action alleging negligence, but it is a formidable retort in a medical negligence action.

In Chester v Afshar [2004] UKHL, the Defendant adopted that retort. He had operated on the Plaintiff for lower back pain. He had failed to warn her of a possible dangerous outcome of the operation. That outcome transpired. She became partially paralysed. This was a 3%-4% chance outcome of the operation.

Generally, to secure a victory in such circumstances a Plaintiff will be heard to say that, if the appropriate warning had been given the Plaintiff would have declined the operation. Ms. Chester declined to say that. Instead, she said she would have declined the operation that day. By this she meant she would have taken time to reflect on the terms of such a warning; she would have consulted friends and relations and then she would have decided.

The House of Lords found in her favour. In the majority, Lord Hope stressed that to deny her the verdict would render the requirement on doctors to advise and warn their patients of such risks, “…useless in the cases where it may be needed most”.

The Court conceded that in reaching this verdict, it was adjusting the usual burden on Plaintiffs in medical negligence actions.

The outcome was fair. After all, should the Defendant not, in those circumstances and on those facts, be required to prove that the Plaintiff would, in due course and despite the warning, have proceeded with the operation? In all such cases that is the implicit assumption of such Defendants. What is valid about that assumption?

It was a measure of the complexity of medical negligence litigation that Lord Woolf in his now famous and influential report devoted a special mention to those proceedings.

A plaintiff must prove the liability of the defendant. This is not equivalent to proving causation. Liability may arise where proof of an error in judgment or management is established, but the plaintiff must go in to prove that that error was the cause, or a cause, of the untoward outcome for the patient.

Very often this requires the evidence of two separate experts on behalf of the plaintiff, one on liability and the other on causation.

How much should your doctor tell you?

Well, everything material, if you ask. And if you do not ask?

The doctor should inform you of the treatment it is proposed to apply to you and clearly inform you of any risks associated with that treatment. The presumed outcome of that will be an “informed consent”.

It is only with the consent of a patient that a surgical procedure, say, is rendered lawful. Without the consent it is an assault and battery and a particularly serious one at that.

A consent which is not informed is not a real consent.

The limitation on the duty of disclosure is the word “material”.

A doctor, even using an information sheet or publication, cannot be expected to inform every patient of everything relating to the proposed treatment. There would not be enough time in the world to achieve that objective.

Nevertheless, it is not enough for a doctor to say that he/she replied to the queries of the patient; in short that “informed” standard varies from patient to patient, depending on the inclination of the patient to ask questions.

In Geoghegan v Harris [2000], Kearns J stated;

Having regard to the heavy obligations imposed on medical practitioners by Walsh -v- Family Planning Services , it seems to me that any real consideration of the “inquisitive patient” is subsumed by the onerous obligations of disclosure set down by the Supreme Court. Current Irish law requires that the patient be informed of any material risk, whether he inquires or not, regardless of its infrequency.”

This is a deviation from what appears to be the UK approach, an approach obliquely queried by Sedley L. J. in Wyatt v Curtis [2003] EWCA Civ 1779 where he said;

…there is something unreal about placing the onus of asking upon a patient who may not know that there is anything to ask about”

The High Court has approved a €4 million settlement in the case of a 13 year old girl.

She suffers from cerebral palsy after the alleged mismanagement of her birth.

The proceedings were taken by Emma Duddy of Letterkenny, County Donegal, represented by McGarr Solicitors, against the North Western Health Board, the former owners of Letterkenny General Hospital and Mr. Davidson, the obstetrician. Her mother Adrienne acted as her “next friend”.

Her mother went into hospital in Letterkenny in 1995 for the birth of Emma. The court heard allegations that the labour and birth were mismanaged.

The defendant was sued for negligence and breach of duty, including statutory duty, which the Plaintiff said, through her parents Adrienne and John, led to her severe disability.

No admission of liability was made by the hospital or Mr. Davidson and the action against Mr. Davidson was struck out as part of the settlement.