The Gazette 1990

GAZETTE

' APRIL 1 9 90

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

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.

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. in William Dunne (an infant) -v- The National Maternity Hospital and Jackson [1989] I.R. 91 at 110).

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

by 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.

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