› Medico-Legal Matters
A Fairer Hearing THERE IS A WIDESPREAD PERCEPTION THAT THE LEGAL SYSTEM IS STACKED AGAINST DOCTORS, BUT THERE ARE SIGNS TOWARDS INCREASING THE SCRUTINY OF A PLAINTIFF’S EVIDENCE. BARRISTER IMOGEN MCGRATH EXPLAINS
edical negligence claims have increased significantly in number over the past few years. This is not indicative of a fall in the standard of medical care. Rather, it is evidence that surgeons operate in an increasingly litigious environment. To an observer, it can appear that the legal system is stacked against the medical profession with plaintiffs pushing an open door to compensation at the expense of professional reputations. Such a perception is understandable. However, it does not take account of a number of recent important judgments. The appellate courts have, in the last two years, both stridently reaffirmed the threshold to be reached for establishing negligence and tightened procedural safeguards for the benefit of defendants. JUDICIAL APPRECIATION OF REPUTATIONAL IMPACT The Supreme Court recently acknowledged the toll that negligence claims take on medical practitioners (Mangan v Mount Carmel Hospital [2020] IESC 67). The Court referred to the rule that claims cannot be made against doctor without independent expert evidence of negligence or breach of duty, and said: “The reasons for there being this rule in respect of professional malpractice, are readily understandable, particularly but evidently not solely, in the case of doctors … Reputation is a crucial component of one’s right to earn a livelihood at a personal level, as it is for public confidence in the profession of which that 28
person is a member, at an institutional level ... Therefore, by instituting practice related proceedings against such a person or body, is to put their reputational integrity in issue, at least to some extent, and thus should only be undertaken if there is justifiable reason for so doing. ” The Court of Appeal has also emphasised the principle that unsustainable legal claims are not in the common good and held (Kelly v UCC and the Southern Health Board [2020] IECA 293): “… the law in this jurisdiction requires that if a plaintiff makes damaging allegations of negligent treatment against a professional skilled in a particular branch of medicine, then that plaintiff must have the evidence of another professional, of equivalent skill and standing, who has formed the opinion that the treatment administered fell below the necessary standard required of such a professional and that it did, in fact, constitute negligence and/or a breach of professional duty. Such a high threshold has been set by the courts because of the ‘Serious consequences’ that an unfounded allegation of medical negligence may have for clinical practitioners. Without ‘professional evidence from another professional’ supporting a claim of medical negligence, a court could never make a finding of negligence ...’ CONFIRMATION OF THE STANDARD OF CARE In what was effectively the cervical screening check ‘test case’, Ruth Morrissey v HSE ([2020] IESC 6), the Supreme Court confirmed that the core principles established in the seminal case of Dunne v Maternity Hospital ([1989] IR 91)
