Medical Negligence in Irish Law

Medical negligence is not a free-standing tort. It is ordinary negligence with the standard of care set in an unusual way. Duty is rarely the battleground: once a doctor accepts a patient, the relationship supplies the duty without argument, so the case turns almost entirely on breach and causation. What makes the topic distinctive is that the courts do not decide for themselves what good medicine looks like. They largely defer to the profession’s own standards — but, in Ireland, not completely.

The professional standard of care

A person who holds themselves out as having a special skill is judged by that skill. The comparator is the reasonably competent member of the relevant profession, not the reasonable person on the street and not the leading figure in the field. Two refinements matter.

First, specialists are judged as specialists. In O’Donovan v Cork County Council Binding (IE) Walsh J fixed the standard at the ordinary level of skill among specialists practising in that field — higher than the generalist’s, but emphatically not perfection. Second, the standard is tied to the role actually being performed. In English v North Eastern Health Board Binding (IE) Charleton J measured a general surgeon in a country hospital against other general surgeons in that setting, not against a specialist hand surgeon. And the professional is judged on the state of knowledge at the time, not by what medicine later learned — the point made in Roe v Ministry of Health Persuasive (Eng).

The Dunne test and its limbs

Dunne v National Maternity Hospital [1989] IR 91 is the seminal Irish authority. A mother carrying twins had only one foetal heartbeat monitored; one twin was stillborn and the other born brain-damaged. Finlay CJ set out the governing principles, and it is those principles — not a paraphrase — that an examiner wants to see. In substance:

• The core test: a practitioner is negligent only if guilty of such failure as no practitioner of equal specialist or general status and skill would be guilty of if acting with ordinary care.
• Deviation is not itself negligence. Departing from a general and approved practice only founds liability if the plaintiff proves the course actually taken was one no practitioner of like skill, acting with ordinary care, would have taken.
• Compliance is normally a defence — unless the practice has inherent defects which ought to be obvious to any practitioner giving the matter due consideration.
• “General and approved” does not mean universal. It must be a practice approved of and adhered to by a substantial number of reputable practitioners holding the relevant qualifications.
• It covers diagnosis as well as treatment, and reaches the practices of hospital administrators too.

Finlay CJ was explicit about why the test is pitched where it is. Doctors should not have to practise under the constant threat of unsustainable claims; equally, the law must not settle for a lax or permissive standard of care. The inherent-defect exception is where that second concern lives.

How far Dunne reaches

The test is not confined to consultants. In Kiernan (a minor) v HSE Binding (IE) it was applied to a public-health nurse, on the basis that Dunne governs any professional with the requisite standing. Morrissey v HSE Binding (IE) confirms that the Dunne principles travel across professions, so the same architecture answers a question about an accountant or a solicitor. And the test cuts both ways for plaintiffs: in McGowan v O’Rourke [2012] IEHC 266 Binding (IE) the absence of any deviation from general and approved practice was fatal to the claim.

Consent and the duty to warn

A separate line of authority asks not whether the treatment was competent but whether the patient was told enough to consent to it. The duty is to warn of the material risks of a procedure. Irish law leans towards a patient-focused disclosure standard while still formally sitting inside the Dunne framework — and that unresolved tension is one of the best essay points in the topic.

In Walsh v Family Planning Services Ltd [1992] IESC 3 Binding (IE) Finlay CJ held that the obligation varies with how elective the surgery is: for a clearly elective procedure the duty is more stringent, and known complications must be disclosed however unlikely they are. Geoghegan v Harris Binding (IE) went further; Kearns J favoured a reasonable patient test, so that a known complication must be disclosed even where the risk runs to one in thousands. That approach was applied in Winston v O’Leary IE, where a residual-pain complication of a vasectomy should have been disclosed precisely because it was known. Against that, Bolton v Blackrock Clinic Ltd IE determined whether a fully informed consent had been given by applying Dunne itself, and in Healy v Buckley IE the claim failed because the material risks had in fact been disclosed and the undisclosed consequences were neither material nor realised.

The hospital’s own duty

A hospital is not merely the employer of whoever happened to treat the patient. It owes a primary, non-delegable duty to a patient it accepts for treatment, independent of vicarious liability. In Byrne v Ryan Binding (IE) Kelly J held a hospital liable on that primary duty where a public patient had been referred to the hospital rather than to a named consultant, adopting Denning LJ’s reasoning in Cassidy v Ministry of Health Persuasive (Eng) that the hospital must answer for those it selects, employs and pays whatever their contractual label. Morrissey v HSE confirms the non-delegable character of such duties even where the work — there, cervical screening — is outsourced.

Causation: where medical claims are actually lost

Breach is only half the case, and it is usually the easier half. The plaintiff must still show the breach caused the injury, against a background where the patient was often already ill and where an adverse outcome may have been the natural course of the disease. Consent cases have their own version of the problem: even a plainly defective warning gets the plaintiff nowhere unless the evidence supports the conclusion that the patient would have declined or deferred the procedure had the risk been disclosed. Damages carry limits too — Byrne v Ryan also holds that the cost of rearing a healthy child born after a negligent sterilisation is pure economic loss and is not recoverable.

Related Tort Law notes: duty of care in negligence · psychiatric injury and nervous shock · all free Tort Law notes.