A medical negligence claim may arise in a range of circumstances or fall within several health disciplines such as:
- medical malpractice – providing inappropriate or inattentive health care, administrative errors such as mixing up patient records, discharging patients without adequate review and follow-up;
- medical misdiagnosis – failing to diagnose a condition leading to delayed or inadequate treatment, failing to refer a patient for specialist treatment, misdiagnosis leading to inappropriate or unnecessary treatment, incorrect interpretation of test results;
- dental or cosmetic negligence – providing inappropriate or unsuitable treatment, failing to warn of reasonable expectations after surgery;
- surgery and emergency treatment – failure to warn of risks associated with surgery, lack of exercising reasonable care and skill when performing surgery, failure of a hospital to treat medical emergencies such as appendicitis;
- obstetrics, gynaecology and paediatrics – pregnancy and birth-related problems, birth defects and conditions caused during childbirth, failed sterilisation.
Generally, a medical negligence claim will be based on a failure by the health care professional or health facility to provide treatment that is in accordance with a reasonable standard of care.
Where a patient suffers harm that could have been prevented had the requisite standard of care been exercised, the injured person may be entitled to seek compensation to assist in recovering the loss sustained. Claims may be brought against a doctor, treating surgeon, nurse, midwife, dentist, pharmacist or hospital.
Medical negligence claims are particularly complex and should be pursued under the guidance of a lawyer. Proving a breach of duty of care (or negligence) is the cornerstone to a successful medical negligence claim.
How is medical negligence proven?
In all negligence cases, there are certain elements that must be proven before a successful claim can be made and compensation awarded. Within each element, the law has established various principles to assess on the facts, whether that element is satisfied. Establishing each component in a medical negligence matter can be technical, often requiring expert evidence from the medical profession itself.
A person making a claim (the claimant) must be able to show that he or she sustained injuries as a result of the negligence of the person against whom the claim is made (the respondent). In a health care environment, where the claimant may already have an underlying medical condition, this causation threshold can be difficult to establish.
Following are the three key elements required to prove a medical negligence claim.
The medical provider owed the patient a duty to take reasonable care
A duty of care arises in situations where a person has an obligation to care for another person in circumstances where injury or damage could occur as a result of a person’s conduct.
The doctor / patient relationship is a recognised category for which a duty of care exists as it is generally accepted that a medical professional owes a duty to exercise reasonable care, skill and judgment in caring for his or her patient.
The medical provider was negligent and breached the duty of care owed to the patient
Negligence may be established if it can be shown that the health provider failed to do what a reasonable person practising in the same field would have done.
A patient may have difficulty in proving negligence where a medical professional has acted in accordance with the accepted practice of a responsible body of medical professionals or complied with the competence and standard of a reasonable person practising in the same specialty.
The health care provider’s conduct is assessed at the time of the incident and the medical authority available. The Court will be guided by expert medical evidence however will not entertain conduct that, although readily accepted, is irrational.
The determination will take account of all expert and medical opinions, although those opinions may differ.
The negligence caused the harm suffered by the patient
The harm caused must be directly connected to the medical provider’s negligence and not too remote. The starting point is, but for the negligence, would the injury or harm have been suffered? This generally requires an assessment of the patient’s likely prospects for recovery or the likely outcome after treatment, had the negligence not occurred.
This can be difficult to show in some medical negligence claims as often the patient has a pre-existing health concern. Negligence may be proven but it may be difficult to demonstrate that the patient is any worse off than if the breach of duty of care had not taken place, such as a terminally ill patient undergoing surgery in the hope of reversing the condition.
If the damage sustained was reasonably foreseeable and can in fact be attributed to the negligence, then causation is established. Conversely, harm which is unforeseeable is too remote to be recoverable.
As can be seen there are several factors within each element that must be considered – every case is different and will be assessed on its own merits and the circumstances at the time of the incident.
Health care providers and health care facilities owe a duty of care to their patients. Unfortunately, however, errors in judgement and mistakes can occur causing personal injury and loss. If a patient suffers injury, and that injury could reasonably have been avoided had the appropriate level of care been exercised, then the injured person may be compensated for his or her loss.
Time limits apply for making a medical negligence claim and it is important to obtain early legal advice.