Professional Negligence Case Notes Essay

In relation to professional negligence the concept of the reasonable man becomes that of the reasonable professional. The reasonable man will normally lack the skill and expertise acquired by the professional. These professional men and women are not only required to take reasonable care but also to measure up to the standard of competency that can be expected from such professionals-that is the standard of, for example the reasonable nurse or the reasonable solicitor.

The Irish Supreme Court considered the issue of Medical Negligence in The case of Dunne v.

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The National Maternity Hospital {1989} IR 91 and set out the standard of care in what we call professional negligence. In this case the plaintiff sued the hospital, claiming that he had suffered severe brain damage while being delivered, due to the negligence of the attending doctors.

The Chief Justice set out the standard of care required from medical doctors (and equally other professionals) as : “The true test for establishing negligence in the diagnosis or treatment on the part of a medical practitioner is whether he has been proved to be guilty of such failure as no medical practitioner of equal specialist or general status and skill would be guilty of if acting with ordinary care” Page 109

Thus the courts rely on what is reasonable among the profession.

In determining what is reasonable for a nurse in any circumstances the courts will consider whether the nurse acted in accordance with general and accepted practice. Generally if they have acted in accordance with general and accepted practice then the nurse will not be negligent.

In the Dunne case the Chief justice as expressed this If an allegation of negligence against a medical practitioner is based on proof that he deviated from a general and accepted practice, that will not establish negligence unless it is also proved that the course he did take was one which no medical practitioner of like specialisation and skill would have followed had he been taking ordinary care required from a person of his qualifications If a medical practitioner charged with negligence defends his conduct by establishing that he followed a practice which was general, and hich was approved of by his colleagues of similar specialisation and skill, he cannot escape liability if in reply the plaintiff establishes that such practice has inherent defects which ought to be obvious to any person giving the matter due consideration. An honest difference of opinion between doctors as to which is the better of two ways of treating a patient does not provide any ground for leaving to the jury {or judge} as to whether a person who has followed one course rather than the other has been negligence.

It is not for a jury {or judge} to decide which of two alternative courses of treatment is in their {or his} opinion preferable, but their (or his) function is merely to decide whether the course of treatment followed, on the evidence, complied with the careful conduct of a medical practitioner of like specialisation and skill to that professed by the defendant. ” This comprises a major statement by the Irish Supreme Court as regards to the general principles in relation to professional negligence. A number of points might be noted in relation to these principles: 1.

It was accepted that “general and approved practice” need not be universal –but it must be approved of, and implemented by, a substantial number of the profession holding the relevant specialist or general qualification 2. A professional may deviate from general and approved practice although with the limitation that it should not be one that “no medical practitioner of like specialisation and skill would have followed had he been taking ordinary care required from a person of his qualifications” This provision acknowledges the nature of professional work and the need to employ discretion in order to advance professional development 3.

It is expert evidence that determines what “general and approved practice” is. In the case of a professional that is evidence of fellow members of the profession. These principles have been upheld by the Irish courts on a number of occasions Example : Healy v The North -western Health Board (unreported, High Court, 31 January 1996, Flood J) Facts: this case concerned a difference of opinion as regards what course of action should have been followed in the discharge of a entally ill patient. It was contended that the Health board was negligent in the discharge of the plaintiff’s father who committed suicide following discharge. This man had been admitted to a psychiatric hospital suffering from depression and was discharged after nine days. It was claimed that the discharge procedure was not properly conducted. This procedure in relation to a patient suffering from depression involved consideration of the potential risk of suicidal traits.

An expert witness concluded that the hospital notes did not appear to show a proper assessment of risk had been undertaken prior to discharge. Apart from one note there was no evidence that staff carried out a suicide risk assessment. Another expert was of the view that it was not sufficient to ask the patient about suicide especially when there were some pointers towards suicidal thoughts. Expert witnesses said that in relation to suicide assessment there were two schools of thought .

One school believed that the process of suicide risk assessment must be a formal one consisting of consistent and continuous inquiry into the mental state of the patient . The discharge must be as a result of an informed decision accompanied by the risk assessment The second school of thought expressed a more informal approach, including discussion with other healthcare professional involved in care and employing a checklist approach.

The practice in many parts of Ireland was of the more informal nature and if the patient did not bring up the issue then it was not followed by further questions. The court in deciding the question applied the principles stated in the Dunne case. The test applied then was whether the defendant acted with ordinary care of an equally competent practitioner as to the administration of a general practice approved by a substantial amount of practitioners of like skill and specialisation. The principles in the Dunne case state that a difference of opinion is no grounds to establish liability.

Applying these principles to the case the court held: It was not up to the judge to decide which of two schools of thought –the formal or informal – was to be preferred. It was however inherent in both that the risk of suicide in a patient with depression was assessed prior to discharge. In this the court did not interfere in the professional judgement as to which form that assessment took but it was clear that it was “ general and approved practice” that the risk of suicide was assessed prior to ischarge of a patient suffering from depression. In this instance the court accepted that the procedure was not incorrect but the question arose as to whether it was carried out in a manner that accorded with general and approved practice. The court held that there was no indication that the assessment had been carried out, as was good practice and noted in the patients clinical notes. There was no evidence then that the patient was in firm remission.

The court held the defendant negligent in not having carried out an assessment And, if he had carried out an assessment, it would have been inadequate or inadequately considered. There are a number of points that might be made in relation to this judgement-there were two aspects of the care of this patient that led the court to consider the defendants negligent: 1 The hospital did not maintain proper clinical records on the plaintiff’s father 2 The decision that the patient was in firm remission was not supported by general and approved practice of assessment of risk of suicide

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