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 signi cantly in number over the past few years. is 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 plainti s 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. e appellate courts have, in the last two years, both stridently rea rmed the threshold to be reached for establishing negligence and tightened procedural safeguards for the bene t of defendants.

JUDICIAL APPRECIATION OF REPUTATIONAL IMPACT

e Supreme Court recently acknowledged the toll that negligence claims take on medical practitioners (Mangan v Mount Carmel Hospital [2020] IESC 67). e Court referred to the rule that claims cannot be made against doctor without independent expert evidence of negligence or breach of duty, and said:

“ e 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 con dence in the profession of which that person is a member, at an institutional level ... erefore, 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 justi able reason for so doing. ” e 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 plainti makes damaging allegations of negligent treatment against a professional skilled in a particular branch of medicine, then that plainti 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 nding of negligence ...’

CONFIRMATION OF THE STANDARD OF CARE

In what was e ectively the cervical screening check ‘test case’, Ruth Morrissey v HSE ([2020] IESC 6), the Supreme Court con rmed that the core principles established in the seminal case of Dunne v Maternity Hospital ([1989] IR 91)

Delay in prosecuting a claim can be particularly pernicious from a defendant’s perspective …

remain paramount. Despite widespread concern in the a ermath of the High Court judgment that the criterion of ‘absolute con dence’ would extend beyond cytoscreening, the Supreme Court con rmed that the standard of approach is to be judged by reference to the ordinary competent professional. e Dunne principles were summarised and reduced to one overarching principle by Chief Justice Clarke as being “ e standard of approach of a medical professional is to apply a standard appropriate to a person of equal specialist or general status acting with ordinary care. A failure to act in that way will amount to negligence”. e Chief Justice further stated ‘… in many cases, the court has no role in determining the standard to be applied other than to assess the evidence given by professionals as to the standard to which they themselves regard as being appropriate to someone of the standing and skill of the defendant.”

PROCEDURAL CONTROLS

Allied to the reinforcement of the threshold for establishing negligence is a palpable move towards enhanced judicial control over the progress of medical claims. is should reduce the time that professionals have a claim hanging over them.

One example of procedural tightening is that plainti s now face a higher hurdle if they delay in serving their claim on defendants. In order to avoid the impact of the Statute of Limitations, plainti s o en issue what is referred to as a ‘protective writ’, a personal injuries summons issued in advance of receipt of expert evidence. e practice, o en, is not to serve such a summons unless and until expert evidence is acquired. e summons expires a er one year and the threshold for its renewal was elevated this year from the requirement to have ‘good reason’ to the existence of ‘special circumstances’ (Murphy v Health Service Executive [2021] IECA 3). is has led to the dismissal of plainti s’ medical negligence actions at a very early juncture.

Delay in prosecuting a claim can be particularly pernicious from a defendant’s perspective, not least where there are issues of informed consent which turn on viva voce evidence. is was the nding made by the High Court in a recent case where the Judge held: ‘ ere is an undoubted prejudice to parties who are called upon to remember events many years later. eir ability to defend themselves adequately diminishes with time. Accordingly, the court holds that there is a discernible prejudice to the second defendant in the failure of the plainti ’s solicitor to serve the summons on him in a timely manner’ (Young v St Vincent’s Health Care Group Limited & Ors [2021] IEHC 386).

ROLE OF INDEPENDENT EXPERTS

Anyone who has been involved in litigation will have borne witness to its mercurial nature. While a plainti may allege one thing in a personal injuries summons, an entirely di erent argument is sometimes advanced by his or her expert at trial. ere is a well-established rule that litigants must plead their cases properly, but all too o en this is honoured more in the breach than in the observance.

In the Expert Group Report to Review the Law of Torts and the Current Systems for the Management of Clinical Negligence Claims (17 January 2020) there were recommendations for the meetings of experts in advance of the trial so that areas of con ict can be de ned. is is a practice common in other areas of law and there is no reason in principle why it should not occur in medical negligence litigation and every reason why it should. e Court of Appeal has also encouraged parties in medical negligence litigation to seek case management from the High Court and agree lists of issues to be determined by the trial judge (McCormack v Mater Private Hospital [2021] IECA 96). It can be expected that, in particular, defence practitioners will rely on the recent Court of Appeal decision to ensure, rst, that plainti s make out their case with precision and, second, that there is no ambush at trial by way of new expert reports or pleas which were not contained in the original claim.

CAUSATION

Causation remains a cornerstone of many defences to medical claims. e question of causation only arises on the hypothesis that the defendant was negligent. Persuading a judge that established negligence did not cause the injuries complained of is not easy. Where an expert report is obtained to the e ect that any negligent treatment did not cause the plainti ’s injuries, this provides a solid basis for defending a claim. While it may not result in a full trial and dismissal of a plainti ’s claim, it can precipitate a settlement at a signi cantly discounted value. is usually results in the claim being struck out without an admission of liability. Although this does not mitigate the emotional impact of being sued, it does obviate the need for court appearances and avoids any negative reputational nding.

CONCLUSION

It is readily accepted at judicial level that there is a great deal at stake on both sides of medical negligence litigation (McCormack v Mater Private Hospital [2021] IECA 96s). Lawyers who defend medical negligence claims are acutely mindful of the reputational impact of litigation and the strain it places both on the way a surgeon practices medicine and their personal well-being. e architecture of the adversarial system for dealing with medical negligence claims needs reform. While far-reaching recommendations have been made, their implementation is slow. In the interim, however, there is a tangible trend towards reinforcing the existing rules and ensuring that claims will not be prosecuted in the absence of “professional evidence from another professional supporting the assertion of the claim of negligence …”, As Chief Justice Finlay in Dunne observed:

“ e development of medical science and the supreme importance of that development to humanity makes it particularly undesirable and inconsistent with the common good that doctors should be obliged to carry out their professional duties under frequent threat of unsustainable legal claims.”

Pending revision of the litigation rules for medical negligence claims, there is good reason for enforcing rigorous procedural controls and maintaining the high threshold for establishing negligence. ■

Imogen McGrath is a junior counsel barrister specialising in commercial, EU and medical negligence litigation. She routinely represents hospitals and doctors in defending claims. Imogen has been admitted to the Bar of New York and the Bar of England & Wales and is currently a committee member of the Commercial Litigation Association of Ireland and the EU Bar Association.