A Practical Guide to Medical Negligence Litigation, 2nd Edition

Chapter 1 The Legal Principles for Establishing Medical Negligence
Breach of duty – early Irish cases
The reasonable standard test
The concept of 'honest difference of opinion'
The UK position
The concepts of general and approved practice and inherent defects
Inherent defects in general and approved practice
Policy considerations
The six general principles in Dunne v National Maternity Hospital
Standard of care required of nurses
Issues of vicarious liability
Joint tortfeasors, claims for contribution and indemnity
Res ipsa loquitur
Chapter 2 Causation in Medical Negligence Claims
Introduction
Disputes of factual causation
The tests of legal causation
The 'but for' test
Developments towards an alternative test for causation
The classic case of Bonnington Castings Ltd v Wardlaw
Examples of the application of the Bonnington Castings principle
Can a 'material increase in the risk of injury' amount to
a material contribution?
Several possible causes – some tortious, others innocent
Establishing material contribution causation in medical
negligence cases
Apportionment of damages: guilty and innocent damage
Causation and foreseeability
Canadian decisions
Australian authority
Irish authority
Conclusion
Chapter 3 Loss of Chance
The position in Ireland: Philip v Ryan
The position in the UK
Chapter 4 Informed Consent
Historical origins of the doctrine
Medical paternalism
Towards patient self-determination
The reasonable patient test
UK jurisprudence
Consent evidenced in writing
Autonomy and the right to refuse medical treatment
'Capacity' to refuse treatment
Informed consent and causation
Chapter 5 Assimilating Essential Factual Information
Medical records – check list
Hospital complaints procedures
Hospital protocols and guidelines
Chapter 6 Inquests into Hospital Deaths
Coroner's power to appoint an independent medical expert
Entitlement to legal aid for representation at inquests
The scope and function of an inquest
Inquest may investigate surrounding circumstances
The practical effect of the authorities
Chapter 7 Are There Reasonable Grounds to Pursue a Claim?
The requirement to have supportive expert evidence
Causation issues: differentiating between the effects of
poor treatment and the underlying pathology
Loss of chance
Onus of proof
Selecting the right cases to take on
Chapter 8 Statute of Limitations and its Impact on Medical Negligence Litigation
'Date of knowledge'
Issuing proceedings without an expert report to prevent
a claim becoming statute barred
Order 1A
Chapter 9 Delay in Commencing Proceedings
Chapter 10 Commencement of Proceedings (Pleadings, Parties
and Preparations for Trial)
Exclusion of medical negligence claims from the Injuries
Board jurisdiction
Who to sue? – minimise the number of defendants
Impact of Civil Liability and Courts Act 2004
Letter of claim
The personal injury summons
Mediation
Formal offers
Urgent cases
Non-urgent cases
Notice for particulars
Defence
Preparations for trial
Wards of court
Trial
Chapter 11 Discovery in Medical Negligence Actions
What documents are material and relevant?
The meaning of 'necessary for fairly disposing of the cause
or matter'
Is there a requirement to exhaust other procedures before
seeking discovery?
Legal professional privilege and the 'dominant purpose test'
Voluntary or by order of court
Scope of discovery (seeking documents other than
the medical records)
Inspection of original medical records
Chapter 12 Briefing Medical Experts
Duties of the expert witness
Experts appointed by the court
Rules relating to disclosure of expert reports
Are an expert's commentaries on another party's reports
disclosable?
Disclosure of documents referred to in expert report
Exchange of reports
Chapter 13 Medical Records
The evidentiary importance of medical records
Necessity for oral evidence to prove medical records
Adverse inferences from not calling author of records
Adverse inferences from poor note taking
Chapter 14 Formulating the Claim for Damages in Serious/Catastrophic
Injury Cases
The aim of compensation (restitutio in integrum – full compensation principle)
Developments in Ireland
Specific heads of damage
Chapter 15 Life Expectancy Issues
Royal Victoria Infirmary and Associated Hospitals Trust
v B (A Child)
Court's preference for medical evidence over statistical evidence?
Chapter 16 Structured Settlements, Periodic Payment Orders
The traditional lump sum award
Risk of plaintiff being undercompensated in a lump sum award
What can the plaintiff do faced with under-compensation?
Developments in the UK
Recent developments in Ireland
Periodical payments versus lump sum approach
The current position in the UK
What is currently happening with catastrophic injury
claims in Ireland?
Civil Liability Amendment Bill 2015: a false dawn?
Chapter 17 Birth Injury Litigation
Essential criteria for a successful birth injury claim
Establishing breach of duty
Negligent antenatal care
Alleged failure of care provided during labour (intrapartum care)
Injuries during the neonatal period due to paediatric negligence
How to go about trying to prove breach of duty
The problem of establishing a causal link between the disability (CP) and
intrapartum events
Essential criteria to link cerebral palsy to labour events
Decided Irish birth injury cases
Most common allegations of negligence
Chapter 18 Medical Negligence Litigation: Reform Proposals
HIQA Report into the Portlaoise Maternity Hospital (2015)
Why patients sue?
'Doubling up' of investigations of adverse events
Problems with the tort-based current system
Equality of arms
Initiatives for reform and change
Proposed reforms in Ireland
Reforms proposed by the MPS
A legal duty of candour
Judicial Working Group on Medical Negligence
Pre-action protocols
Case management
Appendix – Precedents