1. The medical practitioner owns a duty of care in negligence to his patient and may also incur liability in battery in circumstances where he has afforded a treatment to his patient without his patients consent.
2. In order to prove negligence under Irish Law the first question to be decided is whether or not there has been a breach of duty of care. The principles to be applied in deciding this issue have been laid down by Finlay C.J. in Dunne -v- National Maternity Hospital and the salient points are as follows: –
3. The true test for establishing negligence in 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.
4. If the allegation of negligence against a medical practitioner is based on proof that he deviated from a general and approved 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 the ordinary care required from a person of his qualification.
5. If a medical practitioner charged with negligence defends his conduct by establishing that he followed a practice which was general and which was approved of by his colleagues of similar specialization 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.
6. General and approved practice need not be universal but must be approved of and adhered to by a substantial number of reputable practitioners holding the relevant general and specialist qualifications.
7. Though treatment is referred to in some of these statements of principle, they must apply in identical fashion to diagnosis.
8. In an action against a hospital where allegations are made of negligence against the medical administrators on the basis of a claim that practices and procedures laid down by them for the carrying out of treatment or diagnosis by medical or nursing staff were defective, their conduct is to be tested in accordance with the legal principles which would apply if they had personally carried out such treatment or diagnosis in accordance with such practice or procedure.
9. If there is a common practice which has inherent defects which ought to be obvious to any person giving the matter due consideration, the fact that it is shown to have been widely and generally adopted over a period of time does not make the practice any less negligent. Neglect of duty does not cease by repetition to be neglect of duty.
Disclosure and Informed Consent
We also wish to inform you that with regard to disclosure, the Irish courts have held the following:
1. There is a clear obligation on a medical practitioner carrying out or arranging for the carrying out of an operation, to inform the patient of any possible harmful consequence arising from the operation, so as to permit the patient to give an informed consent to subject himself to the operation concerned. The extent of this obligation must as a matter of common sense vary with what might be described as the elective nature of the surgery concerned.
2. The standard of care to be exercised by a medical practitioner in the giving of the warning of the consequences of proposed surgical procedures is not, in principle any different from the standard of care to be exercised by medical practitioners in the giving of treatment or advice.
3. Where there is a question of elective surgery which is not essential to health or bodily well being, if there is a risk – however exceptional or remote – of grave consequences involving severe pain stretching for an appreciable time into the future and involving the possibility of further operative procedures, the exercise of the duty of care are owed by the medical practitioner requires that such possible consequences should be explained in the clearest language to the Plaintiff.