Q&A

Medical Malpractice: Author Michael Boylan on Navigating this Highly Litigated Area of Law

With the publication of his new book, Medical Negligence Litigation, 2nd Ed (previously A Practical Guide to Medical Negligence Litigation), Gráinne McMahon sits down with author and solicitor Michael Boylan to discuss modular trials, the Statute of Limitations and lump sum damages.

 

  1. Michael, firstly congratulations on the latest edition of your new book. You must be delighted with it?

 

Thanks. I am relatively satisfied with it. Hopefully it will serve its purpose and be useful to legal practitioners trying to navigate their way through a complex medical negligence action.

 

 

  1. How did you find the writing process this time?

 

I would like to say it was a labour of love. I did find it a challenge to complete and also manage my day-to-day professional commitments to clients. It took me a good deal longer than I expected as a lot of water has passed under the bridge since the first edition published in 2016. However, I did find it very useful in keeping me up-to-date on the law on this topic.

 

 

  1. I know you said you learnt quite a lot in writing this edition of the book, what were your main take-aways from the experience?

 

It really did surprise me how much case law there has been over the past six years in the area of medical/clinical negligence. Even ten years ago, there were only a trickle of decided cases but more and more each year the case law has expanded with each passing year. There have also been legislative changes which have impacted on medical negligence litigation combined with a number of relevant statutory instruments such as those affecting the conduct of trials, limits on the number of expert witnesses that can be called etc. 

 

 

  1. The law has changed quite substantially since the last edition of the book, what were the main changes you had to deal with during the writing process?

 

I wouldn’t say that the law has changed substantially in any real sense. However, there have been a number of decided cases which have clarified and explained in clearer terms tort law, as it should be applied in the context of a medical negligence action. The judgments of the Supreme Court in Ruth Morrissey v the HSE and of the Court of Appeal in McCormack v Timlin and Farrell v Ryan being examples. There have also been very helpful judgments dealing with the Statute of Limitations in medical negligence actions and clarifying the requirement to have supportive expert evidence before commencing action. 

 

 

  1. You discuss modular trials in the book and I know you are not really in favour of them, why so?

 

I agree with the comments made by Charlton J. that the risk of modular trial is that it may ‘tear at the fabric of what the parties have to litigate’. It may be attractive at first blush to seek to split the trial into a liability module to be followed if the plaintiff succeeds, by a quantum model. However, there is often an overlap in the issues and the expert evidence on the issues may substantially overlap. There is also the real prospect of extra delay in the litigation. Finally, and very importantly from a plaintiff’s point of view, it is a huge challenge for a relatively poorly financed/resourced plaintiff to have the wherewithal to mount one medical negligence trial, never mind facing the prospect of funding a second modular trial.  I agree with the comments of the former Chief Justice (Mr. Justice Clarke SC) that ‘the longest way around is often the shortest way home’.

 

 

  1. You have spoken about how medics are leaving themselves exposed in terms of being sued, why is this and how can they improve matters?

 

To this day, I am surprised at the quality of the note keeping by medics. I find in general that doctors’ note keeping is often of a lower standard than the nursing notes. I am reminded of the well known saying ‘no notes, no defence’. I do believe that doctors are leaving themselves unnecessarily exposed to legal action by the failure to properly record vital information from the medical examinations they have performed. They place themselves in a difficult position when the notes are incomplete, and years later, they have to rely on reconstructed memory to the effect that ‘I would invariably have carried out my examination in this way’. Doctors will rarely if ever remember an individual patient or an individual examination and therefore must rely upon their notes perhaps years later when a complaint is made regarding their care. The maintenance of good clinical notes is the foundation of a good defence. It is very difficult for a patient to succeed in the teeth of a good contemporaneous note, of the clinical examination. 

 

Similarly, informed consent proforma printed forms are often inadequate, the consent often is not secured by the treating consultant/surgeon but often a junior doctor and often when the treatment or surgery is about to be performed. Such a process can place the clinician in unnecessary peril.

 

  1. What is your view on leap frog appeals?

 

Anything that can result in the litigation being justly completed in the shortest time has my approval. ‘Justice delayed is justice denied’ as they say. There is now an extremely long, up to two-year delay, in the Court of Appeal, in getting appeals heard. If the issue to be litigated is one in respect of which the Supreme Court may have jurisdiction I see much merit in permitting a leap frog appeal, such as occurred in the important medical negligence case of Ruth Morrissey v the HSE. The Supreme Court’s decision in that case put an end to a lot of ill-informed and at times, hysterical comments about what had in fact been decided by the learned High Court judge in that case.

 

 

  1. You were a keen advocate of the exchange of disclosure early in the process and the rules have been clarified since the last edition of your book, what should practitioners be aware of?

 

The Court of Appeal have recently helpfully clarified and given practical guidance to practitioners as to how the disclosure rules should be operated. The practitioner should be aware of the guidance recently given by the Court of Appeal per Noonan J. in O’Flynn v the HSE. The key point being that there should be, if at all possible, a simultaneous exchange of expert evidence and parties should not be trying to gain a litigation advantage, by holding back instructing experts until they see and consider the other party’s expert evidence.

 

 

  1. What is your advice if practitioners come across a case where it is very close to the Statute of Limitations?

 

If at all possible, my advice is to have proceedings issued within two years of the date of the treatment complained of. This takes off the table the vexed questions of the Statute of Limitations, date of actual or constructive knowledge of relevant information etc. Of course, there are cases where the issuing of proceeding within two years is not possible as the patient will come to his lawyer a number of years after the treatment complained of. This creates significant complexity and controversy. 

 

  1. What is your advice where there is a case of limited life expectancy?

 

In a case where the plaintiff has limited life expectancy, the patient’s legal team have a professional and moral obligation to try to have the litigation completed before the patient dies. This will often demand a huge commitment on the part of the patient’s legal team to try and do all necessary work at ‘warp speed’ while not dropping the ball in terms of providing a quality service. It will also involve usually an application to the High Court to have the action case managed and an agreed timetable designated for exchange of pleadings, discovery, exchange of expert evidence etc. and an early trial date fixed compatible with the plaintiff’s life expectancy. 

 

  1. Michael, there are two significant cases dealing with the Statute of Limitations, namely Greene and O’Sullivan, can you tell us about the key takeaways from those cases?

 

The judgments are quite complex and lengthy, and I would urge practitioners to read them. The analysis by Finlay Geoghan J. is excellent. As far as I am concerned, the courts detailed analysis and clarification of Section 2 (1)(c) of the Statute of Limitations Act 1991 is important. The court highlighted that much difficulty has been caused to practitioners with regard to the proper interpretation of the section and the court highlighted the requirement that the plaintiff must have knowledge of the fact that ‘the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence’.

 

The court emphasised that it is not sufficient that a person has knowledge of the fact that the injury is capable of being attributed to an act or omission of the defendants, rather the knowledge must be of the fact that the injury is capable of being attributed to an act or omission of the defendant alleged to constitute negligence. In other words, the patient must have knowledge that his/her injury is attributable to the alleged negligent treatment.  Of course, the court did emphasise that the patient had an obligation to seek expert advice and could not blindly remain in ignorance, by keeping their head buried in the sand. 

 

My final advice would be that it’s better not to get into this complex area and as I advised earlier, if at all possible, to have proceedings issued within two years of the treatment complained of.

 

 

  1. Michael, would you outline where we stand in this jurisdiction regarding lump sum damages which you deal with in the book?

 

There is a lengthy chapter on this in the book, and the relative merits and disadvantages of lump sum damages versus periodic payment orders. There are problems with both currently. On balance, because of the defective indexation which has been introduced by the Irish legislation lump sum damages are currently really the only option.  Unfortunately, lump sum damages still place the burden of life expectancy risk on the patient as well as the investment risk. There is huge controversy and debate about what should be the appropriate discount rate or real rate of return assumption that the courts should make when calculating lump sum damages. The Court of Appeal judgment in Russell v the HSE made it clear that under the common law, a badly injured Plaintiff who has to fund future care should not be obliged to take any risks on investing his/her lump sum.  This is currently under review by the Minister for Justice.

 

 

  1. For any practitioner, solicitor or barrister that may have aspirations to write a book, what advice would you give?

 

Think long and hard about it!  Give yourself a realistic deadline to try and meet, don’t beat yourself up when you find out that judgments or statutory provisions that did not exist at the time the book was written and published, subsequently come to pass. This is an occupational hazard and unavoidable. 

 

Michael Boylan