What is Medical Negligence* ?
Medical negligence* is defined as the failure or omission by a medical practitioner to act in a manner that is expected of them by the medical profession. Such omissions arise when the medical practitioner veers off the set medical standards when dealing with patients.
A medical negligence* legal action is initiated only when the practitioner’s negligent actions end up causing harm and injury to their patient.
Negligence versus Malpractice
Negligence, in itself, is not always sufficient to warrant the levelling of charges against a medical practitioner. If the negligent acts didn’t resort to any harm on the health and wellness of the patient, then the medical professional might just be exempted from facing a medical negligence* legal action.
Medical Standards of Care
The question asked in such tort cases is often: Could the results and outcomes for the patient be any different were they to be performed by another equally competent medical practitioner? If the answer is yes, then that professional may indeed have deviated from the accepted medical standards of care and therefore potentially neglect.
Proving Medical Negligence*
For an injured person to prove that a medical person is negligent, the following factors must be considered:-
- Was there a doctor-patient relationship in place?
- Was the medical professional negligent?
- Did the medical professional’s neglect cause harm and injury?
- Was the medical professional at fault for misdiagnosis?
- Did the medical professional perform improper treatment?
- Did the medical professional inform the patient on the expected risks?
Medical Negligence* & Causation
For an injured person to succeed in a medical negligence* legal action, causation needs to be satisfactorily proven. There is a need to show a direct correlation between the injuries of a patient and the failure by the medical practitioner to perform their due diligence. The integrity of the entire lawsuit hinges on establishing causation. A medical negligence* legal action would effectively collapse if one was unable to connect the two above mentioned aspects.
The Statute of Limitations
The statute of limitations exists for the sake of protecting both the defendants and the plaintiffs in medical negligence* actions. There is only a window of up to 24 months during which injured patients have to report and initiate legal action, excluding the date of knowledge exception.
The sooner the investigation commences, the better the chances of actually collecting evidence to assist the case.
What is Vicarious Liability?
Vicarious liability refers to a scenario where someone else, in this case, the administrators of a hospital, are held liable for the omission(s) or act(s) of their employees. To avoid being held responsible for the actions, or rather inactions, of their employees, the employer is supposed to devise and effect necessary measures.
Frequently Asked Questions
Do I have a claim for medical negligence* ?
To answer this one should apply the following questions to the facts :
- Was there a diagnosis or treatment on the part of a medical practitioner where there is a failure to a degree that no medical practitioner of equal specialist or general status and skill would be guilty of if acting with ordinary care ?
- Did the medical provider deviate from a general and approved practice ?
- Did the medical provider follow a course that no medical practitioner of like specialisation and skill would have followed ?
- Did the diagnosis or treatment the medical carer followed have inherent defects which should have been obvious ?
- Did the diagnosis or treatment provided comply with careful conduct of a medical professional of like specialisation ?.
A medical carer will have a duty of care to their patient, therefore the above questions needs to be applied to the individual facts to answer this question. Once its clear negligence arises, it is necessary to prove that it was the negligent act / omission that led to the persons injury.
How hard is it to prove medical negligence* ?
To succeed in a medical negligence claim, you need to provide evidence that proves the medical carer failed in their duty and this failure causing you harm / injury.
The particulars of negligence relevant to each case will be different, but it must be proved that the defendant did not exercise reasonable care, diligence, judgement and caution regarding the treatment given, or advice given, or management of the situation etc.
In a typical situation, a competent and professional medical person is expected to follow the recommended clinical procedures when faced with a unique dental problem.
A patient can prove his/her the treatment or care provided was below the acceptable standard if, for example, the wrong treatment was conducted and it amounts to a situation that couldn’t have occurred with another professional practitioner.
Another requirement is that of causation. This links the actions taken by the medical provider to the injuries sustained. The patient must show that if it were not for the negligence of the medical carer, she/he wouldn’t have suffered an injury.
How long do clinical negligence claims take ?
This is difficult to answer with any precision as there are many variables here, and there isn’t a one size fits all in terms of having a defined answer.
The first point to consider is what is the attitude in terms of the defendant ? ie is liability admitted or not ?.
Evidently if liability is defended this increases the duration of the case and the court must ultimately give judgement.
Another point to consider is what are the injuries of the person taking the case ? ie are they ongoing or not.
For example, lets say you have a fracture. This is a clearly defined injury with normally a clearly defined duration of recovery.
A court wants to know the diagnosis, prognosis, duration of recovery, nature of treatment etc. ie in order to have the full picture.
If a person requires further medical care, the persons doctor has not concluded the treatment required, and will therefore not be clear on all eventualities to describe to a court.
Another point to consider is how complex is the matter or not.
Some cases are complex, but a lot of cases are not complex and it is likely your solicitor has seen a case of similar features before.
We humans love complexity over simplicity.
Once proceedings are issued and if injuries are not ongoing, you can move your case on with relative speed to have it concluded at the earliest opportunity.
In our opinion claims of this nature do take longer in duration than personal injury claims*.
Please be advised that the above-mentioned material is intended as an overview and as a broad out-line of the topic discussed. It should not be considered as complete and comprehensive legal advice, nor act as an appropriate substitute.
Due care has been taken in the publication of this article and we do not accept legal liability as a result of reliance on any material covered in the above article.
Personal Injuries * In contentious business, a Solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.