Surgical Error Claim

Surgical errors occur and can have significant consequences for a person a result.

Reasonable care, skill, diligence and judgement with respect to the treatment surgery should arise.

The doctor performing the surgery should have the skill and experience for the matter at hand.

The risks related to the surgery should be disclosed to the patient. A patient should freely consent to the proposed treatment. All relevant information should be disclosed and the patient should understand the risks, benefits etc.

A legal question which will arise in a surgical error claim is whether no reasonable professional of the type concerned would have carried out their task in the manner specific to the medical care undertaken in question.

The doctor has a duty to exercise the skill, care, diligence that would be expected from a reasonably competent practitioner in the same field of medicine.

In Dunne V National Maternity Hospital, the principles applicable to medical negligence cases in particular as to the standard of care with respect to diagnosis and treatment were laid out.

A court of appeal case namely Morrissey V HSE at 6.6 and 6.7 of the Judgement it was stated :

Thus, the starting point in any professional negligence case requires the identification of the standard of approach which would have been applied by a professional of the appropriate standing or skill as the person against whom the allegation of negligence is made. Accepted practice is highly relevant, although departure from normal practice may be found not to give rise to negligence where an equivalent professional might reasonably have followed such a course of action while exercising reasonable skill. Likewise, following normal practice may not absolve the professional from a claim in negligence if it can be shown that there was an inherent defect in the practice which should have been obvious to professionals of the type in question. Finally, it is emphasised that the question will not come down to one of a judge deciding which of two or more possible courses of action might have been considered, often with the benefit of hindsight, to have been preferable, but rather whether the course of action actually adoptedwas consistent with the exercise of the ordinary care which could reasonably be expected of a professional of the type under consideration.

(1); the standard of approach of a medical professional is to apply a standard appropriate to a person of equal specialist or general status acting with ordinary care. A failure to act in that way will amount to negligence.

Kieran Cleary and Roger Cleary, Medical Negligence Injury Solicitors can help with questions you may have regarding negligence, liability, case viability etc. and our numbers are (01) 546 1121 or  (052) 612 1999 or our email address is info@clearysolicitors.com