Date: Wed, 9 May 2007 11:01

From: Eoin Quill

Subject: Good news/bad news

On the issue of misdiagnosis (rather than the misstatement aspect of Lionel's posting), the group might be interested in a couple of Irish cases.

One is a negligent delay in diagnosis, leading to a belief in lost life expectancy and consequent psychological suffering. The High Court awarded damages for the psychological suffering, without requiring proof of medically recognised illness and without reference to the case law on negligently inflicted psychiatric injury. The evidence in respect of lost life expectancy was evenly balanced and so treated as not proved by the plaintiff (on the normal burden of proof test). The Supreme Court upheld the decision on psychological harm, overturned the ruling on lost life expectancy and added €5,000 to the damages award (using a relaxed burden of proof from cases on quantum of future loss, where some existing harm had already been shown); there was also an award of aggravated damages for falsifying the plaintiff's medical notes in an attempt to hide the error. It borders on being a loss of chance case.

Philp v Ryan [2004] 4 IR 241; [2004] IESC 105

The other case involved a mixing up of samples in the lab, resulting in a young man being diagnosed with stomach cancer, leading his stomach being surgically removed. The hospital and lab staff argued, unsuccessfully, that the surgeon's conduct was a novus actus (based on the view that he should have doubted the veracity of such an unusual diagnosis, given the age and symptoms of the patient). The High Court found no negligence on the surgeon's part in relying on a diagnosis based on biopsy results (particularly as the other defendants tendered no evidence to show why the surgeon should doubt his colleagues, other than the fact that the diagnosed condition was extremely rare in young people and some of the plaintiff's symptoms were ones not normally shown by stomach cancer patients).

O'Gorman v Jermyn & Others [2006] IEHC 398

Eoin Quill
School of Law
University of Limerick.

-----Original Message-----
From: Lionel Smith
Sent: 08 May 2007 14:58
To: ODG
Subject: ODG: [Spam?] Good news/bad news

I am not sure whether any UK members noticed the story that we have in today's Canadian media.

A British man was told two years ago he had terminal cancer. He quit his job and spent all his money. Now it turns out he is OK. Could be the basis for a good exam question?

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