Professional Negligence

Professional woman writing on a notebook beside teacup and tablet computer

13 October 2021

Overview

Professional negligence is subject to the general principles of negligence. Professional negligence is negligence in the course of a professional service or advice.

Professional services may include medical, legal accounting and similar services. There will frequently be a contract providing for and regulating the delivery of the service.

The general principles of negligence apply to professional negligence.  Professional negligence commonly involves negligent misstatement causing pure economic loss. It may involve the negligent provision of a service.

The courts consider the general custom and practice in the business or profession in determining whether there has been a breach of duty. However if a practice is followed which has obvious flaws and dangers, the defendant may be nonetheless liable.

Unlike the case with breach of contract, third parties who were intended beneficiaries or for whose benefits the services were provided (such as beneficiaries under a will) may be able to sue the service provider for professional negligence.

Professions

Traditionally, professions were regarded as services which involved so-called intellectual work, typically carrying ethical duties to the client and the community, accompanied by social status.

Professionals usually owe contractual duties to their clients. The duty imposed is that expected from a reasonably careful member of the profession concerned At one stage, these duties were interpreted as excluding the possibility of liability in tort negligence.  However modern cases, have established that professionals may be liable to their clients both for negligence and breach of contract.

A critical aspect of professional negligence cases is the central role given to existing professional practice.  Generally, if the respondent proves that he has complied with the standard of practice that is customary, within a reasonable range of approaches, options,  advice or methods of execution which a member of his profession would undertake, he will usually be relieved of liability for negligence.

If a person holds himself out as having a particular professional qualification or competence, he will be held to the standards and skills of a person in that position, even if he does not hold the requisite qualifications or possess the relevant competence and experience.

The standard for Professional Advice

The standard required in giving advice is that of a reasonable and competent professional in the area concerned. Where the area of practice is clear, it would be negligent to give incorrect advice. Where the area is difficult and less clear, it may be sufficient to give reasonable advice.

Advice and action are not negligent, even it later turns out to be incorrect, where it is within the scope of reasonable options. A generalist will be often obliged to refer to a specialist. He may be negligent if he fails to do so. He may be negligent in selecting a specialist.

Formerly, a barrister was immune from civil liability, in relation to the manner in which cases are prosecuted. The immunity has been reduced. A lawyer or a solicitor may be liable where there has been an undisclosed conflict of interest.  arises. He may be liable for breach of professional codes of conduct.

Obvious Flaws in Practice

Medical negligence and legal professional negligence cases have held that where a practice has inherent risks, which are obvious to anyone giving them due attention, adherence to widely and generally accepted practice, may not be sufficient to preclude the possibility of liability in negligence. A negligent practice does not cease to be so, by repetition.

A person cannot be acting reasonably if he automatically and mindlessly follows a practice which had he thought it through, would have realised is fraught with peril for his client and was readily avoidable and remediable.

The matter is not to be judged with the benefit of hindsight.  However, if it can be said that on giving the matter due consideration he would have realised that the practice was in circumstances incompatible with his client’s interests and if an alternative and safe course of conduct was reasonably open,  he may be held to be negligent.

If there is a dispute as to whether a particular practice is general, customary and approved, the judge (formerly the jury) determines whether it is a general or approved practice.  This will require expert evidence, from persons who are competent in the relevant field.  If there is a conflict between the evidence offered by different experts or members of the profession as to whether a particular practice is general and approved, the matter or “true position” is determined as a fact by the judge.

Differing Approaches in Profession

General practice need not be universal.  It must be approved and adhered to, by a substantial body of reputable practitioners, holding the relevant specialist or general qualifications. The general test for negligence is whether the defendant has failed to reach the standard of a professional of the equivalent (e.g. general practitioner or specialist) status and skill, as the case may be.

If the allegation of negligence is based on a proven deviation from a general and approved practice, this will not constitute negligence unless it is proved that the course was one which no person of like specialisation and skill would have followed had he taken ordinary care required from a person of his qualification.

If a person sued for negligence defends his conduct by establishing that a practice that was general and which is approved of by his colleagues of similar specialisation and skill he may still be liable if the plaintiff can establish the practice has inherent defects which ought to be obvious to any person giving the matter due consideration.

There may be an honest difference of opinion between professionals of that class, as to whether one or other course of practice is better than another. In this case, adherence to one or other practice is unlikely to constitute negligence.

The alternative view must have reasonable grounds, be honesty held and have sufficient standing in the relevant field. An honest but groundless belief in an alternative approach or opinion is insufficient.

It is a matter for the judge to determine, based on the evidence offered, whether the respondent’s approach, advice etc. in the circumstances, met the standard of conduct of a professional of like specialisation and skill, to that professed by the defendant.

The professional will not be liable for an error of judgment, provided that it is not unreasonable in that the circumstances. There may be different fields of thought in a particular profession as to what is the best course.  Where each school of thought is respected and tenable, the professional may be entitled to choose between them, without being held liable for negligence, for having chosen one course.

Current Practices

In professional negligence cases, evidence will be required as to the current practice in the relevant profession There will not necessarily be liability on account of an error of judgment, where the error is not unreasonable. A counsel of perfection is not required.  The courts will seek not to be wise after the event, at least to some extent.

There may be circumstances where there are legitimate differences of opinion amongst members of a profession. In this case, negligence would not be held to exist, where one reasonable course has been followed as opposed to another.

A member of a profession is expected to keep abreast of current practices. Professional practices may cease to be current. Outdated practice should be revised in accordance with the latest good practice. Many professions now require mandatory Continuous Professional Development (CPD). Minimum hours of certified training or lectures in each annual period may be required as a condition of renewal of the licence to practice.

Over time, a particular recommendation for a change in practice may become so well founded and known, that it represents accepted practice. To disregard one particular article or recommendation may be excusable. To disregard a whole range of established opinion, may well amount to negligence.

Changing State of Knowledge in Profession

A school of thought may go out of fashion.  Most professionals have mandatory continuing professional development requirements.  A person may not obstinately carry on a technique that is manifestly out of date and is proved contrary to informed opinion in the profession.  It is not enough to simply proceed with what one was taught at college or university.

A professional is not obliged to keep up with every modern development in each journal.  However, over time a new practice may become so well proved and recognised that he should adopt it and failure to do so might constitute negligence in this case.

If a new approach or solution to a problem is still experimental or has not become firmly established in the field, the failure to adopt will not generally be negligent. On the one hand, the professional should not stray beyond recognised practice too much.  On the other hand, a measure of common sense and latitude will be allowed in embracing new approaches.

Specialists

There may be a distinction between specialist and general practitioners in many professions. Where a person is held out as a specialist in a particular field, he must exercise the level of skill professed by the average reasonable specialist practitioner in that field.

In the case of a general practitioner, such as in law, medicine and other areas, the standard required would be less than that for a specialist. There may be an obligation to refer a client or patient or to refer to a specialist.It may be negligence to fail to do so. General practitioners and solicitors may be expected, under certain circumstances, to refer to and to consult a specialist in a particular area.

A higher standard of care is expected of a specialist relative than of a generalist.  A general practitioner or medical doctor will not be expected to have the same level of skill as a consultant or specialist solicitor/barrister or equivalent specialist.  The standard of care is measured against the manner in which a professional holds himself out.

If a person, who has no qualification in the relevant area, holds himself out as having a particular skill and qualification, he will be held to the standards he professes. Such a person may be liable to prosecution or breach of statute, where the activity concerned is reserved for persons who hold the required qualification and are registered under with the relevant statutory regulator.

Medical Cases and Battery

A particular issue which arises in the context of medical cases is assault and battery.  Any touching of interference with the body of another is potentially an assault and battery unless the person has given consent.

In medical cases, the absence of informed consent may lead to liability for battery. A jury trial may be available in relation to cases of a battery. It is not available in cases of medical negligence.

A duty of disclosure arises in the context of battery, to a greater extent that in the case of negligence. The patient’s informed consent should be obtained. There are differing approaches between requiring very detailed disclosure on one end of the spectrum to a less detailed more general disclosure. The judgement of the practitioner will be allowed a certain latitude.

The Irish courts have taken different views as to the extent of the requirement for good for informed consent is not the degree of informed consent is a matter of opinion.  The more serious the consequence the more detail that is required in terms of outlining risks. Irish law does not require all risks be set out to a high degree of detail.

Where consequence is rare and unlikely, the requirement for prior discussion and disclosure is less. If however, the risk of mentioning the risk may itself cause a serious reaction, disclosure may not be required.

Many medical negligence claims are made against the Health Services Executive as the employer having vicarious liability.

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