Medical negligence - what makes a case? - by Lynch Solicitors

WHAT IS MEDICAL NEGLIGENCE?

Medical Negligence is an act or omission by a health care professional that is below the accepted standard of care and results in a patient’s injury or death.

There are four main components of medical negligence:

1. Duty of Care – a legal duty is owed whenever a health care provider or hospital undertakes to treat a patient.

2. Breach Duty of Care – it must be shown that the healthcare provider failed to follow the relevant standard of care.

3. Causation – the breach of duty must have caused the injury.

4. 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 medical negligence case 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 insufficient 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.

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 where a person underwent a bone graft for a dental implant procedure. Before the operation, the practitioner told the patient 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 patients should set the standards of disclosure for medical practitioners and not by Doctors for Doctors.

Doctors must consider the severity of the consequences and frequency of risk to the Plaintiff’s circumstances before the surgery.

ASK YOURSELF: DID THE BREACH CAUSE YOU HARM?

Once you can establish a duty and a breach, you must prove that this breach caused harm to you.

Medical negligence cases are very complex because the cause of the harm can be challenging to pinpoint.

In most cases, the person is sick before they ever get to the hospital or suffering from a severe underlying condition, which can complicate the after-effects of treatment. One of the tasks that solicitors face is to identify the outcome if it was not for the healthcare professional’s negligence.

The other side will almost always argue that either the harm caused due to the patient’s illness before they ever attended the Doctor. 

They often argue that in the case of a mistake in surgery, the mistake was within the realm of acceptable error.

This makes the sourcing of suitably qualified experts a vital component of the investigation of any case.

Getting a detailed history with the necessary records and supplement it with accurate testimony is essential.

EXAMPLES OF WHERE THIS STANDARD WAS APPLIED

DIAGNOSIS

These cases usually occur when a Doctor or G.P. does not act on time.

Early detection is vital as it enables timely medical treatment, and the patient can have a positive outcome in many cases.

There are, unfortunately, many people who are misdiagnosed as not having a particular ailment.

Our experience in dealing with medical negligence cases shows that there may be several reasons why a misdiagnosis can occur:

1. Many of them result from human error or a lack of skill.

2. A Doctor may not respond appropriately when a patient presents symptoms.

3. There may be a failure to examine thoroughly or recognise symptoms and signs.

4. There may be a failure to refer to a specialist or to monitor a patient with a family history appropriately.

5. In many cases before the Courts, it has been shown that technicians often misinterpret laboratory results and scans.

TREATMENT

How a patient receives treatment can give rise to a case of negligence.

For example, a patient had surgery to remove a tumour in their throat. The tracheotomy tube was knocked out of place on the second night after the surgery. By the time the airway passage was established, the patient was brain dead. A case was brought because the surgeon allowed the patient to recover in I.C.U., where no one was trained to replace a tracheotomy tube.

The Court found the failure to have a person, Nurse or Doctor in the I.C.U. trained in replacing a tracheotomy 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 had been present in I.C.U.

DISCLOSURE

You have two years from the date of the knowledge of the alleged breach of duty/breach of care to take your case.