Readers will have seen reference HERE to a plea in a medical negligence case as to the meaning of a “consent” signed by the patient (who was having an operation to make her sterile).

In Fitzpatrick v National Maternity Hospital [2008] IEHC 62 the Defendant claimed that the mother (in labour) declined an episiotomy or a forceps-assisted birth (leading to the damage to the infant). The court rejected this plea, and rejected the evidence of the Defendant, intended to evidence it.

In fact the evidence from the defendant was unequivocal; it alleged the parents had each rejected the offered treatment in circumstances where the staff said…

“…they could not be responsible for the consequences for her or her baby.”

… if the mother did not agree to the proposed actions.

The court said:

“I find on the evidence that Senior Midwife O’Dwyer did not, nor did Dr. Wiza, nor indeed did Staff Midwife Murphy (though on the evidence it was hardly her place to do so given the presence of the others) explain the severity of the plaintiff’s condition to either Mrs. Fitzpatrick or Mr. Fitzpatrick at any time prior to the birth of the plaintiff. I cannot imagine how it could be legitimately stated that this couple were extremely difficult to deal with in labour. I have already found that they were encouraged to and did formulate a birthplan which was given to and discussed with Staff Midwife Murphy on Mrs. Fitzpatrick’s admission to the labour ward, who then brought Senior Midwife O’Dwyer into the discussion.”

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.

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 Bitter Pill�? by Doctor X is a small effort to improve the Irish hospital health system and, as such, is required reading by all interested and concerned persons.

This post is an unashamed plug for the book, published [2007] by Hodder Headline Ireland.

The author is an anonymous junior hospital doctor, concealing his (I say her) identity as Doctor X. Currently I have read only the chapter entitled “Dirt and Bugs�?, but on the strength of that alone the Minister for Health will in future be unable to “spin�? the shocking levels of nosocomial infections in Irish hospitals.

There is a depressing conclusion also; most intelligent lay persons would have no difficulty envisaging the state of affairs revealed by Doctor X in “Dirt and Bugs�? (without the benefit of his/her revelations). When the Health Service Executive issue hospital “hygiene audit�? results, they, as professionals, must already know what Doctor X knows and therefore they know that the hygiene audits are misleading as to the true state of affairs in hospitals.