Professional persons owe contractual duties to their clients, but they also owe a duty of care and can, therefore, be held liable in negligence.
When does professional negligence arise?
Is a professional expected to know everything in her field?
Must he always be right?
Customary Practice
A key principle in looking at this area is that of “customary practice”. If a member of a profession can show that he/she adhered to customary practice in his profession, he may avoid liability in negligence. He will further insulate himself from liability in negligence if he exercises a standard of care which a reasonably careful member of the profession would exercise.
Medical Negligence
The basic test is whether the doctor or medical professional has behaved reasonably. The seminal case in this area is Dunne v National Maternity Hospital in which Finlay CJ held that an
“the true test for establishing negligence in diagnosis or treatment on the part of a medical practitioner 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”.
The Courts have also warned against being wise after the event and failing to make allowances for the complicated task facing a doctor. Furthermore, a doctor will not be guilty of negligence if he makes an error of judgment provided that error is not an unreasonable one.
There is a duty to keep reasonably up to date with changing medical thinking and literature.
A specialist in a particular field is expected to have the ordinary skills that specialists in the same field hold.
General practitioners are obliged to make a reasonable diagnosis, not a correct one, and if he/she is uncertain should refer the patient for specialist investigation.
Other medical personnel are expected to act in accordance with the standards of reasonable members of their area of work; if they do not they may be held guilty of negligence.
The law does not require a medical professional to make a correct diagnosis in every case, only a reasonable one in the circumstances. The same principle of reasonableness applies in relation to treatment-what is necessary is that the doctor act reasonably in the provision of treatment.
Unqualified Persons
The Courts recognise that a person who has no medical qualifications cannot be held to the same standard as a medical professional when it comes to things such as ear piercing. Nevertheless, that person will be expected to have the medical skills he claims to have, even if he does not hold the medical qualifications.
Informed Consent
Treatment without informed consent could arguably be characterised as battery or negligence. In Ireland the Supreme Court has held that it is negligence. The law is in a confused and unsatisfactory state in relation to informed consent, with different approaches required in respect of elective surgery and non elective.
The Courts have also grappled with the problem of full disclosure to a patient in respect of proposed surgery versus not worrying the patient unnecessarily be setting out all possible risks, however remote.
A higher standard of disclosure and explanation will be required where the informed consent is in respect of treatment for the purposes of medical research.
Barristers
There appears to be a difference recognised between a barrister’s work as a court advocate and other legal work, with a view that a court advocate, whether barrister or solicitor, should enjoy a certain immunity as a public policy.
There is no definitive decision one way or the other in Ireland, however, with different approaches being taken in the United Kingdom.
Solicitors
Solicitors owe professional duties of care to their client in contract and in tort for negligence.
A solicitor’s liability in tort will even be owed to a person for whom he acts without reward and who relies on his professional care and skill.
The Standard of Care for Solicitors
A solicitor who gives incorrect advice where the law is clear will be liable in negligence. Where the law is not clear, however, advice may be reasonable, and therefore no negligence, although later turns out to be incorrect.
A solicitor may also be liable in negligence if he fails to give advice in a transaction in which he is engaged.
A solicitor can be held liable in negligence in litigation in a number of ways:
- Choosing the wrong Court to bring the case in;
- How he liaises with counsel on behalf of the client-where he puts his client’s claim fully before counsel and acts on counsel’s advice he will not be guilty of negligence;
- How he performs his advocacy duties;
- Delay in initiating or progressing litigation.
A solicitor acting in a property transaction, however, is in dangerous territory in respect of a potential negligence claim. Liquor licences can also cause problems and requires care.
A solicitor also needs to avoid following client’s instructions slavishly for the solicitor cannot abrogate his duty to use his skill, knowledge, and experience.
A solicitor will also leave himself open to a negligence claim if he has a conflict of interest between himself and his client.
Conclusion
A professional person must act in accordance with customary practice to avoid being liable in negligence; he may have an exposure for breach of contract, however.