Litigation Reform: Nature, Impacts and Policy Responses

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Litigation Reform Nature, Impacts and Policy
Responses

• Thursday, 18 June 2009
• Desmond Ryan LL.B. (Dub.), B.C.L., M.A., (Oxon.),
• Barrister-at-Law,
• Lecturer in Law, Trinity College Dublin
• Desmond Ryan is a Barrister and Lecturer in Law
  in Trinity College Dublin, where he is Registrar
  of the School of Law. His areas of specialisation
  include Medical Negligence law, an area in which
  he has published extensively. He regularly
  provides lectures to practitioners at St. Jamess
  Hospital, Dublin, and frequently delivers CPD
  lectures to practising solicitors and barristers.

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1. Introductory Comments

• Healthcare Litigation in Context
• Focus on Civil Liability
• Sources of civil litigation
• Common law law of torts Distinction between
  primary and vicarious liability
• Statutory provisions
• The Constitution
• Influence of European Convention on Human Rights
  (ECHR)

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2. Healthcare Litigation Emerging issues of
particular significance

• Systemic Negligence
• Informed Consent to Medical Treatment
• Liability for Hospital-Acquired Infections

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3. Negligence The Legal Framework

• Classic definition
• Negligence is the omission to do something which
  a reasonable man, guided upon those
  considerations which ordinarily regulate the
  conduct of human affairs, would do, or doing
  something which a prudent or reasonable man would
  not do.
• (1856)

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4. The Duty of Care

• Core constituent ingredient is duty of care
• Key questions in this regard
• Duty ? for what?
• ? to whom ?

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5. The Dunne Test for Breach of Duty

• Breach of Duty must also be shown
• Key question What is the standard of care and
  did the Defendant fall short of that standard?
• The Dunne Test
• 1. True test for establishing negligence in
  diagnosis or treatment 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.
• 2. 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 qualifications.
• 3. 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 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.
• 4. 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 a question to the jury as to whether
  a person who has followed one course rather than
  the other has been negligent.
• 5. It is not for a jury (or for a 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.

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6. Causation

• Causation must also be established
• Extremely significant in medical cases
• Factual Causation v Legal Causation
• But for test
• Barnett v Chelsea and Kensington Management
  Committee 1968 1 QB 428
• Difficulties with conventional but for test
• Other tests employed by courts in medical
  contexts

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7. Damage

• Damage the gist of negligence
• Requirement that plaintiff show damage that is
  sufficiently related to breach complained of

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8. Negligence and Informed Consent

• Meaning of informed consent
• Interests accorded legal recognition and
  protection
• Significance of recent decided cases focus on
  autonomy
• Chester v Afshar 2005 1 AC 134
• Responses

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9. Liability for MRSA and Hospital-Acquired
Infections

• Potential Sources of Litigation
• ? Negligence
• ? Legislation
• The Health Act 1947
• The Occupiers Liability Act 1995
• Safety, Health and Welfare at Work (Chemical
  Agents) Regulations 2001
• The Safety, Health and Welfare at Work Act 2005.

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10. Negligence Claims in Context of MRSA and
other infections

• Potential Bases of claim
• Failure to screen the patient
• Failure to identify the colonisation
• Failing to isolate the patient from others who
  had infections
• Failure to follow infection control procedures
  and protocols including handwashing protocols and
  decontamination protocols
• Failure to ensure a sufficient level of hygiene
  at all times
• Failure to train staff adequately or at all
• Failure to warn the patient of the risk of
  infection
• Failing to keep up to date to ensure that the
  most recently approved and developed practices
  were adhered to
• Failing to have any or any adequate system in
  place to prevent the spread of infection.

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11. Specific Considerations in relation to MRSA
and infections

• Difficulties in proving causation
• Whether Dunne principles apply?
• Res Ipsa Loquitur
• Recent Scottish case
• Miller v Greater Glasgow NHS Board 2008 CS0H 71
  (May 2008)
• Impacts and Responses

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12. Concluding Observations

• The Changing Face of Litigation
• Impacts and Responses
• Thank you!
• Questions and comments are welcome
• desmondryanbl_at_ireland.com
• School of Law,
• New Square,
• Trinity College,
• Dublin 2.