Suing for hospital infections

The_Minister

Based on a story I heard recently (details all redacted obviously):

Question, if a person goes in for surgery, say elective, low-risk surgery, and it goes well, but they contract an infection of some sort, say one that was nearly deadly, one which would put them out of action for a long time, hurt them etc


Would they actually be able to sue for negligence, or would the hospital have made them sign something waiving their right to sue?

McCrack

Most definitely sue. Showing a nexus can be difficult however (and expensive).

MRSA is the obvious one.

BrianD

Are infections and superbugs not just part of life now? Like we're all supposed to be 1m from a rat etc?

I would have thought that contracting a bug is a known risk of going into a hospital.

Milk & Honey

It is not possible to contract out of liability for personal injury. To sue successfully, it would have to be shown that the risk was foreseeable and that the hospital did not take reasonable precautions.

Procrastastudy

Milk & Honey wrote: »

It is not possible to contract out of liability for personal injury. To sue successfully, it would have to be shown that the risk was foreseeable and that the hospital did not take reasonable precautions.

I'm not sure that's right. I would have thought a properly drafted waiver would be fine? I'm sure I shall be flamed to a medium/well if I'm wrong.

O’Hanlon v. ESB [1969] IR 75 ?

Milk & Honey

GCDLawstudent wrote: »

I'm not sure that's right. I would have thought a properly drafted waiver would be fine? I'm sure I shall be flamed to a medium/well if I'm wrong.

O’Hanlon v. ESB [1969] IR 75 ?

That case is about contributary negligence. waivers only apply where there is an inherent risk in an activity which cannot be avoided. E.G. a person going to an ice skating rink is at risk of falling no matter how careful the operator is.

FreudianSlippers

The concept of informed consent may be worth considering here too. I note the OP's example would go well beyond informed consent (i.e. why have a "minor" surgery where you have a risk of death from infection). However, in a more benign example, a patient may be informed that there is a risk of infection where any surgery is involved; they may then consent to that surgery despite the risk of infection.

Of course this would be highly impacted by negligence on the part of the doctor/hospital in either the surgery, cleaning of the wound pre/during/post-operation as well as the general cleanliness of the hospital. The onus is on the Plaintiff to establish 1) the infection was contracted it in the hospital; 2) that it was contracted due to negligence at some stage pre/during/post-operation.

drkpower

Milk & Honey wrote: »

It is not possible to contract out of liability for personal injury.

That is a common misconception. There isnt any blanket prohibition on excluding liability for death/personal injury in Ireland (by contrast to the UK). There are specific restrictions, like in defective products and consumer legislation, but there is no catch-all blanket prohibition.

Theoretically, exclusion clauses could be used in an Irish healthcare setting. But the general view is that an Irish court would look on them very very strictly, to the point that it would be almost impossible to rely on one. The reasons are kind of obvious, particuarly since the 'equality of bargaining power' that is typically required for a valid exclusion clause really never exists in a typical hospital-patient relationship. In any case, im not aware of any hospitals/doctors that have tried to rely on exclusion clauses.

As for hospital acquired infections, McCrack has given the best answer; suing is possible but very difficult. Even if you can show negligence, showing the probable degree to which the hospital/doctor's negligence actually contributed to a patient actually contracting the infection can be very very difficult.

FreudianSlippers

drkpower wrote: »

That is a common misconception. There isnt any blanket prohibition on excluding liability for death/personal injury in Ireland (by contrast to the UK). There are specific restrictions, like in defective products and consumer legislation, but there is no catch-all blanket prohibition.

Theoretically, exclusion clauses could be used in an Irish healthcare setting. But the general view is that an Irish court would look on them very very strictly, to the point that it would be almost impossible to rely on one. The reasons are kind of obvious, particuarly since the 'equality of bargaining power' that is typically required for a valid exclusion clause really never exists in a typical hospital-patient relationship. In any case, im not aware of any hospitals/doctors that have tried to rely on exclusion clauses.

As for hospital acquired infections, McCrack has given the best answer; suing is possible but very difficult. Even if you can show negligence, showing the probable degree to which the hospital/doctor's negligence actually contributed to a patient actually contracting the infection can be very very difficult.

That's a good point, I wasn't thinking also of situations where there would be a plea of risk assumption or volenti non fit injuria.

Ashashi

drkpower wrote: »

That is a common misconception. There isnt any blanket prohibition on excluding liability for death/personal injury in Ireland (by contrast to the UK). There are specific restrictions, like in defective products and consumer legislation, but there is no catch-all blanket prohibition.

Theoretically, exclusion clauses could be used in an Irish healthcare setting. But the general view is that an Irish court would look on them very very strictly, to the point that it would be almost impossible to rely on one. The reasons are kind of obvious, particuarly since the 'equality of bargaining power' that is typically required for a valid exclusion clause really never exists in a typical hospital-patient relationship. In any case, im not aware of any hospitals/doctors that have tried to rely on exclusion clauses.

As for hospital acquired infections, McCrack has given the best answer; suing is possible but very difficult. Even if you can show negligence, showing the probable degree to which the hospital/doctor's negligence actually contributed to a patient actually contracting the infection can be very very difficult.

The European Communities (Unfair Terms in Consumer Contracts) Regulations, 1995 states terms that exclude death or personal injury fall foul. Now there is the exception that the contract was negotiated in utmost good faith and there are factors set out in Schedule 2 for determining this, but Schedule 3 lists out a number of terms which would be deemed unfair.

Section 6 states that if there is an unfair term, the contract is not binding but section 6(2) states that if the unfair term can be severed then the contract could still be valid.

drkpower

Ashashi wrote: »

The European Communities (Unfair Terms in Consumer Contracts) Regulations, 1995 states terms that exclude death or personal injury fall foul. Now there is the exception that the contract was negotiated in utmost good faith and there are factors set out in Schedule 2 for determining this, but Schedule 3 lists out a number of terms which would be deemed unfair.

Section 6 states that if there is an unfair term, the contract is not binding but section 6(2) states that if the unfair term can be severed then the contract could still be valid.

I know; I mentioned that there are specific restrictions in consumer legislation.

But, remember, the unfair terms regs only apply where the contract has not been individually negotiated. So again, theoretically, an exclusion clause could be used in an Irish healthcare setting.