No Expert Opinion? Your Claim for Professional Negligence is Bound to Fail

If you are considering bringing legal proceedings for professional negligence the Court of Appeal has recently confirmed you will need an expert report or opinion. If you do not have such an opinion your claim is ‘bound to fail’ according to the High Court in Andrew Mangan (a minor) v Julian Dockeray and By Order Brian Denham and Mount Carmel Hospital.

In this case Mr. Mangan’s case against the defendants was dismissed by reason of the absence of expert medical evidence.

Background

Mr. Dockeray, a consultant obstetrician, had provided antenatal care to Mr. Mangan; Mr. Denham, a paediatrician, had provided neonatal care and Mount Carmel Hospital was where Mr. Mangan was born in 1995. It was at the time of his birth that Mr. Mangan had suffered various injuries including cerebral palsy.

In 2008 Mr. Mangan brought legal proceedings against Mr. Dockeray, the obstetrician. Mr. Dockeray brought an application to join Mr. Denham and Mount Carmel Hospital and this application was grounded on an affidavit of Mr. Dockeray’s solicitor. This affidavit stated that an expert opinion had been obtained by Mr. Dockeray and this expert report criticised the care provided by Mr. Denham and the hospital. This expert report was not exhibited in the solicitor’s affidavit, however, and Mr. Mangan never had sight of it.

Application to joint defendants

Mr. Mangan’s application to join the second and third defendants to his proceedings succeeded but Mr. Mangan confirmed he did not have any expert opinion or report which supported his claim against the second and third defendant; he was relying on the expert report of Mr. Dockeray’s, a report he had never seen.

The second defendant, Mr. Denham, the paediatrician and Mount Carmel hospital applied to have the proceedings against them struck out on the basis that Mr. Mangan had no expert report alleging negligence against them as required by the Rules of the Superior Courts (Order 19 Rule 28). Their argument was that the action against them had no prospect of success and was frivolous and vexatious, particularly in the absence of expert opinion against them.

Mr. Mangan was relying on the affidavit of Mr. Dockeray’s solicitor alleging negligence against Mr. Dockeray and the hospital but neither Mr. Mangan nor his legal team had seen this expert medical report.

High Court Decision

The High Court dismissed Mr. Mangan’s claim against the hospital and Mr. Dockeray for he had never made any allegations against them. Moreover, Justice Binchy found

  • Mr. Mangan’s expert report made no connection between his injuries and Mr. Dockeray and the hospital
  • Mr. Mangan could have sought more time to obtain his own expert report but had not done so
  • When a plaintiff declines to make any allegations against another party his pleadings will not disclose any reasonable cause of action, contrary to Order 19, Rule 28 of the Rules of the Superior Courts
  • It would fly in the face of logic to allow a claim against two defendants in circumstances where Mr. Mangan had made no allegations against them and he was merely relying on an affidavit of another solicitor which makes reference to a medical report but does not exhibit it in the affidavit.

Court of Appeal

Mr. Mangan appealed the decision of the High Court to the Court of Appeal and sought more time to obtain his own expert medical opinion. The Court of Appeal did not allow his appeal and decided the High Court had correctly applied the law to the facts of the case.

The Court of Appeal held that, having regard to the long timeline involved in this case, to give Mr. Mangan further time would be unfair to the hospital and the paediatrician.

GP Defends Professional Negligence Claim About Breast Cancer Diagnosis in High Court

differential costs order

The High Court decision in Rossiter v Donlon is a useful one to look at when it comes to increasing our understanding of professional negligence, and what you need to prove to bring home such a legal action.

Background

The background to the case is that Ms. Rossiter sued Dr. Donlon for professional negligence arising from his advice and care in a consultation in which she presented with a history of an armpit lump.

Ms. Rossiter noticed a lump in her left armpit and after three months she went to Dr. Donlon. She was 32 years old at that stage in 2014. Dr. Donlon examined her left armpit and could not discern any lump. Dr. Donlon reassured her and told her to return to if the lump returned.

Ms. Rossiter attended Dr… Donlon, and other doctors, for approximately two years for the treatment of eczema but there was no further mention of the armpit lump.

In August 2016 she attended another doctor with a lump on her left breast and was diagnosed with terminal breast cancer.

Ms. Rossiter claimed the breast cancer could have been diagnosed earlier if she was referred to a Breast Clinic in 2014 by Dr. Donlon; she further claimed that Dr. Donlon had carried out an inadequate examination and had failed to carry out a breast examination in 2014.

Dr. Donlon’s evidence was that a breast examination was offered but this was declined, and she asserted that Ms. Rossiter agreed with her on the day that there was no lump present. Ms. Rossiter denied Dr. Donlon told her to return if there was a recurrence of the lump and she claimed that the lump persisted after the September 2014 consultation.

It was clear from the evidence of both parties that there were important conflicts of evidence on a number of points as to what was said at the September 2014 consultation. The Court preferred Dr. Donlon’s evidence on most heads, however, because she had made notes at the time of the consultation and these notes were preferred to the memory recall of Ms. Rossiter.

Dr. Donlon’s notes stated, “declined breast exam”. If the Court was to accept Ms. Rossiter’s evidence over the notes of Dr. Donlon it would meant that this note was a lie and added after the fact. This would be an extremely serious finding for the court to arrive at against a doctor and, furthermore, Ms. Rossiter’s legal team did not make this allegation or put this proposition to Dr. Donlon during cross-examination.

Expert medical evidence was produced by both sides as to the rate of tumour growth in an attempt to arrive at the likely size of the tumour in 2014. The evidence of Dr. Donlon’s expert witness was preferred and, on that basis, it was estimated that the size of the tumour in September 2014 would have been .6cm in size which is below the threshold size of 1 cm to have been discoverable on palpation by a GP at that time.

Negligence?

Mr. Justice Barr had to look at two questions when deciding whether Dr. Donlon was negligent or not:

  1. Should Dr. Donlon have insisted more strongly that Ms. Rossiter attend for a breast examination when it was declined?
  2. Should Dr. Donlon have arranged a review appointment at a later date?

It was decided that where both doctor and patient disagreed about the presence of a lump a further consultation should have been scheduled; however, in this case there was agreement that there was no lump and, therefore, no need to arrange a further consultation.

Mr. Justice Barr also found that even if Dr. Donlon was negligent in failing to refer Ms. Rossiter for a breast exam in 2014 this failure did not lead to any loss or injury.

He also held that, having regard to the rate of growth of the tumour from 2014 to 2016 when it was discovered, it would not have been detectable in September 2014 due to its small size.

Read the full decision here: Rossiter v Donlon [2019] IEHC 105

The High Court Affidavit of Verification In Personal Injury and Defamation Actions

affidavit of verification

An affidavit of verification is required in the High Court to verify assertions or facts alleged in personal injury actions and defamation proceedings. It is to verify a pleading or replies to a request for further information and is required pursuant to section 14 of the Civil Liability and Courts Act, 2004 in personal injury actions, and pursuant to section 8 of Defamation Act, 2009.

A copy is served on the party who is being served with the pleading or replies to further information.

(4) An affidavit under this section shall be lodged in court not later than—

(a) 21 days after the service of the pleading concerned or such longer period as the court may direct or the parties may agree, or

(b) in the case of a requirement to which subsection (8)(b) applies, 7 days before the date fixed for the trial of the personal injuries action concerned. (Section 14 Civil Liability and Courts Act 2004).

The form it should take is as follows:

AFFIDAVIT OF VERIFICATION

O. 1A, r. 10

THE HIGH COURT

20…. No……
Between A.B., …………….. Plaintiff,

and C.D., …………. Defendant.

I, AB, ……………….. of …………………. , the (plaintiff, defendant or state other capacity or authority) in the above-entitled proceedings, aged eighteen years and upwards MAKE OATH and say as follows:

1. I beg to refer to the contents of the (personal injuries summons, defence, reply, further information etc. – as the case may be) delivered herein on behalf of the (plaintiff/ defendant) on the ….. day of ………….. 20 …. *[upon which this affidavit is endorsed] *[and upon a true copy of which marked “A” I have signed my name prior to the swearing hereof].

2. The assertions, allegations and information contained in the said (personal injuries summons, etc.) which are within my own knowledge are true. I honestly believe that the assertions, allegations and information contained in the said (personal injuries summons, etc.) which are not within my own knowledge are true.

3. I am aware that it is an offence to make a statement in this affidavit that is false or misleading in any material respect and that I know to be false or misleading.

SWORN etc

It is an offence to make a statement in an affidavit that is false or misleading and you can be fined up to €100,000 and/or imprisoned for up to 10 years, pursuant to section 29 of the Civil Liability and Courts Act, 2004.

Liability for Injuries Caused by Animals-What You Should Know

animals damage law

The rules which relate to liability for damage or injury caused by animals fall into two categories:

  1. Special rules, providing for strict liability
  2. General rules in accordance with the principles of tort.

Liability Under the General Rules of Tort

Under the general rules of tort liability can arise under a number of headings:

  1. Negligence-the usual rules of negligence will apply
  2. Nuisance
  3. Trespass, and there is a distinction between general rules in relation to trespass and special rules of cattle trespass. Liability under cattle trespass is strict liability whereas other types of trespass may require negligence or intention on behalf of the cattle owner.
  4. Occupier’s Liability-liability may also arise under the Occupiers’ Liability Act, 1995.

Special Rules

One of the special rules concerning animals draws a distinction between wild animals and domestic animals.

The owner of a wild animal is strictly liable for any damage caused by that animal. This is the scienter principle.

The owner of a tame, domestic animal on the other hand will only be held liable if he is aware of a “mischievous propensity” in the animal to do damage that ultimately is complained of. It does not matter how the owner knows of this malicious tendency.

This mischievous propensity must be “a vicious, mischievous or fierce tendency”.

A defence in a scienter action will be the contributory negligence of the plaintiff, although this will only reduce the liability of the defendant.

Dogs

The Control of Dogs Act 1992 sets out the statutory position in Ireland with respect to liability of owners of doges for damage done. The Control of Dogs Act, 1986 is also relevant and section 21 of that act imposes strict liability for injuries caused by dogs to animals or persons. For strict liability to arise, however, in relation to a person there must have been an attack whereas there is strict liability in respect of damage done to livestock, with no need to show an attack took place.

A person will still have a cause of action under the scienter rule if he can show the dog had a mischievous propensity and the keeper of the dog knew this.

When a trespasser is injured by a dog the ordinary rules of negligence apply-this is not an incidence of strict liability (ref section 21(3), Control of Dogs Act, 1986).

The 1986 Act also provides remedies in the District Court for nuisance caused by barking dogs.

Cattle Trespass

Cattle which stray from their owner’s land onto another person’s property will give rise to their owner being held liable. This liability only arises when the cattle stray of their own accord.

“Cattle” includes horses, sheep, goats, pigs, assess, domestic fowl and deer.

Who is liable, however, the owner of the cattle or the owner of the land? It appears from decided cases that the person who has possession and control of the animals is liable, not the owner of the land or cattle.

The extent of the liability will be for damage done to land, crops, and animals.

Defences include

  • An act of God
  • The plaintiff’s own fault
  • Contributory negligence
  • The wrongful act of a third party.

Animals on the Road

The normal rules of negligence, discussed already, will apply. Section 2 of the Animals Act, 1985 abolished any immunity for liability in negligence. Strict liability does not apply, however, and to avoid liability a landowner needs to show that he took reasonable care in respect of fencing.

Horses in Urban Areas

The Control of Horses Act 1996 was introduced to deal with the problem of keeping horses in urban areas.

Professional Negligence Law in Ireland – The Facts You Should Know

professional negligence

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:

  1. Choosing the wrong Court to bring the case in;
  2. 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;
  3. How he performs his advocacy duties;
  4. 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.