PEOPLE WHO have reduced life expectancy as a result of delayed diagnosis could sue the hospital and doctors involved, according to an expert in medical negligence law, in a clear reference to the Tallaght hospital controversy.
In an article in today's Irish Times, barrister John Healy, who has just published a book on medical malpractice, writes that a recent Supreme Court judgment changed the law on compensation for delayed diagnosis.
A case called Philp v Ryan"greatly liberalised the ability of patients to recover compensation against doctors and hospitals for negligently delayed cancer diagnoses," he writes.
In this case, a plaintiff recovered €45,000 against the Bon Secours Hospital in Cork after diagnosis and treatment of his advanced-stage prostate cancer had been unjustifiably delayed by a period of eight months.
Mr Healy states that the award of compensation was expressly grounded by the Supreme Court in the mental distress and anxiety the plaintiff suffered because of the delay, and additionally his loss of valuable medical opportunities to treat the cancer and the resultant loss to his life expectancy.
He quotes Supreme Court judge Mr Justice Fennelly, who said in the judgment: “[I]t seems to me to be contrary to instinct and logic that a plaintiff should not be entitled to be compensated for the fact that, due to the negligent diagnosis of his medical condition, he has been deprived of appropriate medical advice and the consequent opportunity to avail of treatment which might improve his condition. I can identify no contrary principle of law or justice.”
Previously, a plaintiff was not entitled to compensation if a defendant’s negligence had not yet caused him to suffer a personal injury, in this context a physical injury, Mr Healy explains. In cases of negligently delayed diagnosis leading to delayed treatment, the first manifestation of physical injury was often death or fatal disease. In addition, one of the ironies of the personal injuries system is that if a defendant’s negligence is so injurious as to cause a person’s death before a claim was determined, the monetary value of the claim plummets, according to Mr Healy.
"This indeed made the Supreme Court's ruling in Philpall the more resonant, since its effect is now to entitle patients, whose diagnosis and treatment have been delayed by medical negligence, to recover compensation for their mental distress and the estimated reduction in their life expectancy," he writes.