Court of Appeal: Case in Medical Services Sector

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The court of appeal between Jimmy Brown (Appellant) and Galaxy General Hospital (Defendant).

Notice of appeal

I. The learned Trial Judge, Campbell J, erred in law in holding that Dr. Roberts was not negligent in performing the operation and that the procedure in question was a general and approved practice.
II. The learned Trial Judge erred in law in failing to find that the operation in question did not contain inherent defects and was carried out with the appropriate standard of care.
III. The Learned Trial Judge erred in law when finding that the performed procedure was a non-elective surgery and therefore did not require a higher standard of care when carrying out the procedure and by doing so, there was no duty to inform the plaintive of all material risks and complications of the medical procedure in question.
IV. The learned Trial Judge erred in law in finding that the timing (1 hour before the procedure) of warning, by Dr Roberts was sufficient and consequently did not impact on the validity of the consent obtained.

Legal Submission

[1] Statement of Claim

[1.1] Council for the Appellant, Mr. Jimmy Brown, respectfully submits that the learned Trial Judge, Campbell J, was incorrect in finding in favour of Galaxy General Hospital in the High Court. Council Submits that Campbell J erred in law in (i) holding that Dr Roberts was not negligent in performing the operation, (ii) for failing to identify that the procedure in question was not a general and approved practice, one of which (iii) contained inherent defects and was not carried out with the correct standard of care, (iv) incorrectly defining the nature of the surgery as non-elective and also (v) failing to identify the invalidity of the consent obtained as a result of its timing and warning.

[2] General and Approved Practice

[2.1] Council respectively submits that Dr Roberts did deviate from General and Approved Practice, but also failed to identify the Inherent Defects which ought to have been obvious to any person when giving the matter due consideration [McMahon & Binchy, 2013, at 514].

[2.2] The principals to establish negligence in diagnosis and treatment of the part of the medical practitioner was laid down and summarized in six parts, by Finlay CJ, in the case of Dunne v National Maternity Hospital where in his judgment he stated that [Ibid, at 513] [Dunne v National Maternity Hospital [1989] IR 91, at 108-110]; “Deviance from general and approved practice, is not sufficient to prove negligence, unless it is also proven that the course taken was one which no medical practitioner of like specialization and skill would have followed had he been taking the ordinary care required from a person of his qualification” [Dunne v National Maternity Hospital, 1989, ILRM 735, IR 91].

[2.3] Finlay CJ later clarifies that; “General and approved practice need not be universal but must be approved of and adhered to by a substantial number of reputable practitioners holding the relevant specialist or general qualifications” [1989 IR 91, at 110].

[2.4] Council submits that Dr Roberts did in fact deviate from general and approved practice when he, a general surgeon, undertook a procedure which was not “wildly used and practiced in the field”, as so stated by a medical expert in their testimony, but also a procedure which had never been attempted in Ireland and should only have been attempted by one of the four specialists within this field in the country. We submit that no other medical practitioner of like specialization of that of Dr Roberts, would have undertaken such a procedure.

[2.5] The third principal of the negligence ‘test’ was initially laid down by Walsh J in the O’Donovan v Cork County Council where he stated that; [O’Donovan v Cork County Council, 1967, IR 173, at 193-194] “A medical practitioner cannot be held negligent if he honors general and approved practice… But if there is a commonly used practice which has inherent defects which ought to be obvious to any person giving the matter due consideration, the fact that it is shown to have been widely and generally adopted over a period of time does not make the practice any less negligent” [Ibid, at 193-194].

[2.6] Additionally, council respectively submits that Dr. Roberts failed to identify the inherent defects which ought to have been obvious to any person giving the matter due consideration, in this case, the fact that he failed to examine the possibility of the lack of skin in order to complete the skin graft before commencing the surgery which ultimately resulted in the appellant’s head deformity, nerve damage, and chronic pain not to mention the potential damage to his career and future as a model [1967, IR 173, at 193-194].

[2.7] Finally, council submits that even if one was to disagree and insist that Dr. Roberts did not deviate from general and approved practice, one cannot ignore the obvious inherent defects which any reasonable person of like specialization would have noticed before the commencement of surgery. The true test to establishing negligence in diagnosis or treatment on the part of the 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 and Dr. Roberts is guilty of such a failure [McMahon & Binchy, 2013, at 513].

[3] Elective/ Non-Elective Surgery

[3.1] Counsel submits that Campbell J erred in finding that the procedure was non-elective. We argue that the surgery was elective as it was carried out for cosmetic purposes and therefore the consent obtained should have been of a higher standard.

[3.2] It is generally accepted that more rigorous disclosure of risks is required when a patient wishes to undergo an elective form of treatment. In the case of Walsh v Family Planning Services Ltd. it was accepted that warnings of risks associated with an elective surgery should be more exhaustive. Since an elective procedure is “not essential to health or bodily well- being” it is for the patient to decide if the risks are worth the benefits of the procedure [John Healy, 2009] [Walsh v Family Planning Services Ltd, 1992] [Ibid].

[3.3] The case of Fitzpatrick v White it was stated that warnings given only shortly before an operation is about to commence are undesirable. The point was also argued that warnings given late in the day may also err on the side of negligence. As stated by Kearns J., “where a warning is given late in the day, particularly where a surgery is elective surgery, the outcome might be different” [Fitzpatrick v White, 2008, 3 IR 551] [2008, 3 IR 551].

[3.4] The appellant is of the belief that this case features an elective procedure. Mr Brown’s main goal was to improve the appearance of his forehead and surrounding area. During his follow up consultation with Dr Murphy there was no indication that the surgery was medically necessary. Due to the fact that it was an elective procedure there was also no pressure placed on how soon the operation had to take place. If given more time to process the information Mr Brown may have opted not to have the surgery since it was not essential for his health or to delay the procedure till the original doctor was available. With elective procedures such as cosmetic surgery and sterilization on the rise, we urge the court to consider this very grey area in Irish law.

[4] Informed Consent

[4.1] Counsel submits that the appellant was not given adequate time to make an informed decision on the matter and therefore did not satisfy the criteria for sufficient consent. It is accepted in the courts that individuals have an autonomous entitlement to accept or reject what their doctors propose. In order for a patient to consent to a medical procedure the following three requirements must be satisfied. They must have had: (i) the capacity to consent, along with (ii) being properly informed prior to the commencement of the treatment and (iii) the consent must have been given voluntarily.

[4.2] A key implication in this case is that the late warning given to Mr. Brown tarnishes the validity of his consent. Referring again to the case of Fitzpatrick v White, Kearns J. expressed the necessity for warnings of risks prior to the date of commencement. Prior to an operation he commented on how, “a patient may be stressed medicated or in pain in this period and may be less likely to make a calm and reasoned decision” [2008, 3 IR 551] [Ibid].

[4.3] The case of Re Mb shows the English courts stance that: “Capacity to decide could be completely eroded by temporary factors such as confusion, shock, fatigue, pain, drugs or panic induced by fear. Fear could paralyze the will and thus destroy the capacity to make a decision” [1997, 38 BMLR 175A].

[4.4] Materiality must also be examined in these proceedings. As stated in the case of Montgomery [Montgomery v Lanarkshire Health Board, 2015, UKSC 11]; “The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it” [2015, UKSC 11].

[4.5] Given Mr. Brown’s occupation as both a model and a footballer one can understand why he may have been more distressed than the average patient in these circumstances. He relies heavily on the appearance of his face for his source of income. As a result, he would have attached significance to the risks discussed and may have decided against the procedure. Given that Mr. Brown is well known as a footballer, the respondents should have shown more regards to the fact his career would be affected if the procedure was not successful.

Conclusion

In conclusion, council submits that the High Court erred in law in holding that Dr. Roberts was not negligent in his medical proceedings and for failing to find that the applied negligent tests were in fact satisfied and therefore should not have found in favor of Galaxy General Hospital. We also ask the court to acknowledge that the procedure received by Mr. Brown was an elective procedure, one which was carried out in the absence of valid consent. To conclude, counsel respectfully requests that the Court overturn the decision of the High Court and find in favor of the Appellant, Mr. Brown.

Index Of Authorities:

Irish Case Law
Dunne v National Maternity Hospital [1989] ILRM 735, [1989] IR 91
Fitzpatrick v White [2007] IESC 51, [2008] 3 IR 551
O’Donovan v Cork County Council [1967] 102 ILTR 157, [ 1967] IR 173
Walsh v Family Planning Services Ltd [1992] IESC 3, [1992] 1 IR 496
UK Case Law
Montgomery v Lanarkshire Health Board [2015] UKSC 11
Re MB [1997] 38 BMLR 175

Books

John Healy, Medical Malpractice Law, (Dublin: Round Hall, 2009)
McMahon & Binchy, Law of Torts, 4th edt., (Dublin: Bloomsburry Professional Ltd., 2013)

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