Lynch Solicitors' guide to taking a medical negligence case
If you are to succeed in a claim you have to show both negligence and causation.
In other words, you have to show that there is a duty of care, that there has been a breach of that duty, and that such breach caused your accident and your injuries.
What is Medical negligence?
Medical Negligence is an act or omission by a health care professional which is below the accepted standard of care and which results in injury or death to a patient.
There are four main components in medical negligence:
Duty of care – a legal duty is owed whenever a health care provider or hospital undertakes to treat a patient.
Breach of duty of care – it must be shown that the health care provider in question failed to follow the relevant standard of car.
Causation – the breach of duty must have caused injury.
Damage – Regardless of whether or not the health care provider was negligent, there is no basis for a claim in negligence without damage, be it monetary, physical or emotional.
Was there a breach of this duty?
A case in medical negligence can be made if you can prove that a medical practitioner acted in a way that no medical practitioner of equal standing would act.
The fact that the medical practitioner did not follow an approved practice is not enough in itself to prove your case.
Even though a medical practitioner followed an approved practice, liability may arise if this practice has inherent defects which ought to have been obvious.
An honest difference of opinion between doctors is acceptable unless it can be proven that the course of treatment followed did not comply with the careful conduct of a medical practitioner of like specialisation and skill.
Examples of where this standard was applied
These types of cases usually occur when a doctor or GP does not act in a timely manner.
Early detection is vital as it enables timely medical treatment, and in many cases the patient can have a positive outcome.
There are unfortunately many cancer sufferers who are misdiagnosed as not having cancer. Our experience in dealing with these cases shows that there are several reasons why a cancer misdiagnosis can occur:
- Many of them as a result of human error or a lack of skill
- A doctor may not respond appropriately when a patient presents displaying symptoms of cancer
- There may be a failure to thoroughly examine or a failure to recognise the symptoms and signs of cancer
- There may be a failure to refer to a cancer specialist or a failure to appropriately monitor a patient who has a family history of cancer.
In a great number of cases that have come before the courts, it has been shown that laboratory results and scans are often misinterpreted by technicians.
The manner in which a patient receives treatment can give rise to a case in negligence.
By way of an example, a patient had surgery to remove a tumour in their throat. On the second night after the surgery the tracheostomy tube was knocked out of place. By the time the airway passage was established the patient was brain dead. A case was brought on the grounds that the surgeon allowed the patient to recover in ICU where there was no one trained to replace a tracheostomy tube.
The court found that the failure to have a person, nurse or doctor in the ICU who was trained in the replacement of a tracheostomy tube, under the circumstances, was an “inherent defect”. The surgeon was found guilty of negligence because the deceased would not have died if a trained person been present in ICU.
The question may also arise as to whether or not a patient received sufficient information to help them understand and therefore consent to treatment.
An example of a case due to a failure to disclose arose in 2000. The plaintiff underwent a bone graft for a dental implant procedure. Before the operation the practitioner told the plaintiff there was no guarantee that unforeseen complications wouldn’t arise. However, he did not disclose that there was a risk of chronic neuropathic pain, which the patient subsequently suffered. The courts found that the injury was a known and foreseeable consequence of damaging a nerve and that the standards of disclosure for medical practitioners should be set by patients and not by doctors for doctors. Doctors must consider the severity of the consequences and frequency of risk to the plaintiff’s particular circumstances prior to the surgery.
Did the breach cause you harm?
Once you can establish a duty and a breach you must then prove that this breach caused harm to you.
Medical negligence cases are very complex because the cause of the harm suffered can be difficult to pinpoint.
In most cases, the person is sick before they ever get to the hospital, or they are suffering from a serious underlying condition, which can complicate the after effects of treatment.
One of the tasks which we as solicitors face is to identify what the outcome would have been if it was not for the negligence of the healthcare professional.
The other side will almost always argue that either the harm caused was a result of the illness the patient had before they ever attended the doctor.
They often argue that in the case of a mistake in surgery, that the mistake was within the realm of acceptable error.
This makes the sourcing of suitably qualified experts a key component of the investigation of any case.
Getting a detailed history with the necessary records and supplementing it with accurate testimony is essential.
One of the crucial elements to a case is taking it in time. You have two years from the date of the treatment to take your case. This date can be extended to a later date if you can prove that you did not know or could not have known that you had an injury caused by negligence within the first two years.
For further advice or if you wish to discuss any other legal area, please contact firstname.lastname@example.org or telephone 052-6124344.
The material contained in this blog is provided for general information purposes only and does not amount to legal or other professional advice. While every care has been taken in the preparation of the information, we advise you to seek specific advice from us about any legal decision or course of action.