"I unconditionally welcome the book and recommend it to all practitioners and other interested persons in the complete knowledge that, over time, it will stand as being one of the most authoritative books ever published in this area." The Hon. Mr Justice William McKechnie, Judge of the Supreme Court, in the foreword to the first edition of A Practical Guide to Medical Negligence Litigation.
Medical negligence actions are complex, emotive and highly contentious types of tort litigation. Medical Negligence Litigation provides legal practitioners with an explanation of the key legal principles at play and gives comprehensive and authoritative analysis of claims from the taking of first instructions right through until trial.
Areas covered include: - Breach of duty - Causation - Remoteness of damage - Quantification of damages - Formulation of a medical negligence claim - Inquests into hospital deaths - Medical records - Discovery - Preparation of proofs - Independent expert opinion - Statute of limitations
The new edition covers all relevant cases and legislation since 2016 including: · Morrissey v HSE (proper standard of care to be adopted by cervical cancer screeners) · McCormack v Timlin (error in diagnosis/interpretation may not equate to negligence) · Kelly v Farrell (general and approved practice defence and inherent defects) · Mangan v Dockeray (duty to have supportive expert evidence to pursue action) · Green v Hardiman and O'Sullivan v Ireland (statute of limitations and date of knowledge principles) · O'Flynn v HSE (correct procedures for exchange of expert reports) · Crean v Harty (requirement for precision in pleadings) · Personal injury guidelines (2021) · Coroners (Amendment) Act 2019 · Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020
In addition two new chapters have been added: · Termination and Wrongful Birth Claims · The Lump-Sum Award and the Discount Rate
Read an extract of Medical Negligence Litigation
Table of Contents
Chapter 1 The Legal Principles for Establishing Medical Negligence Breach of duty – early Irish cases The reasonable standard test The concept of 'honest difference of opinion' The UK position The concepts of general and approved practice and inherent defects Inherent defects in general and approved practice Policy considerations The six general principles in Dunne v National Maternity Hospital Standard of care required of nurses Issues of vicarious liability Joint tortfeasors, claims for contribution and indemnity Res ipsa loquitur Chapter 2 Causation in Medical Negligence Claims Introduction Disputes of factual causation The tests of legal causation The 'but for' test Developments towards an alternative test for causation The classic case of Bonnington Castings Ltd v Wardlaw Examples of the application of the Bonnington Castings principle Can a 'material increase in the risk of injury' amount to a material contribution? Several possible causes – some tortious, others innocent Establishing material contribution causation in medical negligence cases Apportionment of damages: guilty and innocent damage Causation and foreseeability Canadian decisions Australian authority Irish authority Conclusion Chapter 3 Loss of Chance The position in Ireland: Philip v Ryan The position in the UK Chapter 4 Informed Consent Historical origins of the doctrine Medical paternalism Towards patient self-determination The reasonable patient test UK jurisprudence Consent evidenced in writing Autonomy and the right to refuse medical treatment 'Capacity' to refuse treatment Informed consent and causation Chapter 5 Assimilating Essential Factual Information Medical records – check list Hospital complaints procedures Hospital protocols and guidelines Chapter 6 Inquests into Hospital Deaths Coroner's power to appoint an independent medical expert Entitlement to legal aid for representation at inquests The scope and function of an inquest Inquest may investigate surrounding circumstances The practical effect of the authorities Chapter 7 Are There Reasonable Grounds to Pursue a Claim? The requirement to have supportive expert evidence Causation issues: differentiating between the effects of poor treatment and the underlying pathology Loss of chance Onus of proof Selecting the right cases to take on Chapter 8 Statute of Limitations and its Impact on Medical Negligence Litigation 'Date of knowledge' Issuing proceedings without an expert report to prevent a claim becoming statute barred Order 1A Chapter 9 Delay in Commencing Proceedings Chapter 10 Commencement of Proceedings (Pleadings, Parties and Preparations for Trial) Exclusion of medical negligence claims from the Injuries Board jurisdiction Who to sue? – minimise the number of defendants Impact of Civil Liability and Courts Act 2004 Letter of claim The personal injury summons Mediation Formal offers Urgent cases Non-urgent cases Notice for particulars Defence Preparations for trial Wards of court Trial Chapter 11 Discovery in Medical Negligence Actions What documents are material and relevant? The meaning of 'necessary for fairly disposing of the cause or matter' Is there a requirement to exhaust other procedures before seeking discovery? Legal professional privilege and the 'dominant purpose test' Voluntary or by order of court Scope of discovery (seeking documents other than the medical records) Inspection of original medical records Chapter 12 Briefing Medical Experts Duties of the expert witness Experts appointed by the court Rules relating to disclosure of expert reports Are an expert's commentaries on another party's reports disclosable? Disclosure of documents referred to in expert report Exchange of reports Chapter 13 Medical Records The evidentiary importance of medical records Necessity for oral evidence to prove medical records Adverse inferences from not calling author of records Adverse inferences from poor note taking Chapter 14 Formulating the Claim for Damages in Serious/Catastrophic Injury Cases The aim of compensation (restitutio in integrum – full compensation principle) Developments in Ireland Specific heads of damage Chapter 15 Life Expectancy Issues Royal Victoria Infirmary and Associated Hospitals Trust v B (A Child) Court's preference for medical evidence over statistical evidence? Chapter 16 Structured Settlements, Periodic Payment Orders The traditional lump sum award Risk of plaintiff being undercompensated in a lump sum award What can the plaintiff do faced with under-compensation? Developments in the UK Recent developments in Ireland Periodical payments versus lump sum approach The current position in the UK What is currently happening with catastrophic injury claims in Ireland? Civil Liability Amendment Bill 2015: a false dawn? Chapter 17 Birth Injury Litigation Essential criteria for a successful birth injury claim Establishing breach of duty Negligent antenatal care Alleged failure of care provided during labour (intrapartum care) Injuries during the neonatal period due to paediatric negligence How to go about trying to prove breach of duty The problem of establishing a causal link between the disability (CP) and intrapartum events Essential criteria to link cerebral palsy to labour events Decided Irish birth injury cases Most common allegations of negligence Chapter 18 Medical Negligence Litigation: Reform Proposals HIQA Report into the Portlaoise Maternity Hospital (2015) Why patients sue? 'Doubling up' of investigations of adverse events Problems with the tort-based current system Equality of arms Initiatives for reform and change Proposed reforms in Ireland Reforms proposed by the MPS A legal duty of candour Judicial Working Group on Medical Negligence Pre-action protocols Case management Appendix – Precedents