The Gazette 1990

GAZETTE

' APRIL 1 9 90

AVMA Medical

Negligence

Conference — a

Report -

Medical negligence is a complex and emotive area of the law. The

recent cases of

Dunne

( now concluded) and

Best

(judgment

pending) have illustrated the difficulties faced by all parties involved

in litigation arising out of medical accidents - be they plaintiffs

or defendants, doctors or lawyers. In the light of this, the two-day

Conference on the subject of medical negligence organised by a

U . K. based organisation called Action for Victims of Medical

Accidents ( AVMA )* held in Dublin on 16/17 February 1990 was both

timely and worthwhile. T he Conference, sponsored by BDO Binder

Haml yn, was attended by approximately 100 doctors and lawyers.

The Conference's opening ad-

dress was given by Mr. Justice

Ronan Keane, President of the Law

Reform Commission. In setting the

parameters of the two-day debate,

Mr. Justice Keane outlined the dif-

ficulties faced by the judiciary in

attempting to strike a balance bet-

ween the need for the continuing

development of medical science

and a duty to compensate patients

who receive inadequate medical

care. He emphasised the very real

dangers of the practice of defensive

medicine and reiterated the broad

approach to deciding medical negli-

gence cases laid down by the Chief

Justice in the Supreme Court

decision in the

Dunne

case where

he stated:

"The development of medical

science and the supreme import-

ance 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

unsure legal claims. The com-

plete dependence of patients on

the skill and care of their medical

attendants and the gravity from

their point of view of a failure in

such care, makes it undesirable

and unjustifiable to accept as a

matter of law a lax or permissive

standard of care for the purpose

of assessing what is and is not

medical negligence. In develop-

ing the legal principles (in

medical negligence cases) and in

applying them to the facts of

each individual case, the courts

must constantly seek to give

equal regard to both of these

considerations", (per Finlay C.J.

William Dunne (an infant) -v-

The National Maternity Hospital

and Jackson

[1989] I.R. 91 at

110).

Michael Kealy,

Solicitor

This was, Mr. Justice Keane

continued, the supreme challenge

to the Irish legal system in this

area.

In remarks which received con-

siderable publicity in the national

press Mr. Justice Keane com-

mented on the "obvious and

notorious" inadequacies of civil

legal aid in this country and ex-

pressed his concern that such

inadequacies may have led to sus-

tainable medical negligence claims

never reaching court. He went on

to discuss the question of whether

"no fault" insurance would be an

appropriate way of deciding medi-

cal negligence cases.

The opening address was fol-

lowed by an English Solicitor,

Arnold Simanowitz, Director of

AVMA, on the Role of AVMA, and

then three Irish lawyers, John

Schutte, Simon Lee and Liam

McKechnie.

John Schutte, Solicitor, dis-

cussed the running of medical

negligence cases from the stand-

point of a solicitor in practice (see

his article in this issue).

Professor Simon Lee, Queens

University, Belfast, attempted to

predict trends in the law of medical

negligence in the 1990s. He ex-

pressed the view that the doctrine

of informed consent would take on

an even greater significance and

that the "monolith" of the medical

negligence actions would disinte-

grate in the next decade with more

specific and separate aspects of

the area receiving greater attention.

Liam McKechnie, S.C., (one of the

plaintiff's counsel in the

Dunne

case), conducted a review of the

current law of medical negligence

in Ireland. Mr. McKechnie referred

to the six general principles of law

which should be applied to such

cases as laid down by the

Sumpreme Court in the

Dunne

case. A detailed analysis of these

principles included a review of the

case-law underlying them and the

extent to which, by formulating

them, the Supreme Court may have

changed the existing law, parti-

cularly with regard to the definition

of "general and approved practice"

among medical practitioners.

Mr. McKechnie also drew attent-

ion to the impact on medical negli-

gence cases of the general law of

professional negligence. Mr.

McKechnie argued that

Roche -v-

Peilow

(a solicitor's negligence

case) could have a major impact on

the question of whether a doctor

can escape liability in negligence

simply by showing that he followed

a practice approved of and followed

by other medical practitioners.

Emphasis was also placed on the

importance of interlocutory pro-

cedures in medical negligence

cases and, more particularly, the

necessity for the lawyers involved

to follow up on particulars which

have not been adequately replied to

and to pursue discovery of docu-

ments with vigour and direction.

Mr. McKechnie stated that interro-

gatories are a much underused but

effective weapon in the armory of

106