A Guide to Medical Negligence and how to succeed

IF YOU ARE to succeed in a negligence claim, you must show both negligence and causation with the assistance of your medical advisors and ourselves as your solicitors.

In other words, you must show a breach of a duty of care and that such breach caused your accident and injuries.

In every case, you must prove the case, and we need to prove this on the balance of probabilities. To do this, you will need medical and other expert reports.

What is Medical Negligence?

Medical negligence is an act or omission by a health care professional who is below the accepted standard of care and results in injury or death to a patient.

There are four main elements to proving medical negligence:

Duty of Care & The Standard of Care –legal duty is owed whenever a health care provider or hospital undertakes to treat a patient.
Breach Duty of Care – it must be shown on the facts and with the help of expert evidence that the health care provider in question failed to follow the relevant standard of care.
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 of Care?

The basis for proving a breach of a duty of care or standard of approach to care was set out by the Supreme Court in Dunne v National Maternity Hospital which can be summarised:

A successful 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 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 is applied

Diagnosis

These types of cases usually occur when a medical professional does not act in a proper or timely manner. If the person suffers an injury because the medical professional did not consider the patient's version of events and a detailed account of the seriousness of their symptoms, then the patient may have a case for medical negligence.

In cases other than screening cases, for instance, the Supreme Court has found in favour of a patient where the casualty officer ignored and did not follow up on a referral letter as it was an "inherently defective" practice and was negligent.

As we now know, early detection is vital in cases such as cancer, as it enables timely medical treatment, and in many cases, the patient can be successfully treated. Unfortunately, many people living with cancer are misdiagnosed as not having cancer.

Our experience in dealing with these cases shows several reasons a cancer misdiagnosis can occur. Many cases arise from human error or a lack of skill, such as:

A doctor may not respond appropriately when a patient presents displaying symptoms of cancer;
There may be a failure to examine thoroughly or a failure to recognise the symptoms and signs of cancer;
There may be a failure to refer to a cancer specialist; or
There may be a failure to monitor a patient with a family cancer history appropriately.
In many cases before the Courts, it has been shown that technicians often misinterpret laboratory results and scans.

Treatment

As well as failing to treat a patient properly, a failure to provide adequate resources may lead to liability for medical negligence.

By way of 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 ICU, where no one was trained to replace a tracheostomy tube.

The Court found that the failure to have a person, nurse or doctor, in the ICU trained to replace 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 had been present in ICU.

Disclosure or Consent

A failure on the part of a medical professional to make complete and adequate disclosure of the detail of treatment can lead to a claim of medical negligence. Patients are often asked to sign "consent forms" without being given sufficient information to make an informed decision.

An example of a failure to disclose occurred when a patient 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 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 before the surgery and advise patients accordingly.

Did the breach cause you harm?

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

Medical negligence cases are complex because the cause of the harm can be challenging to pinpoint. In many cases, the person is sick before they ever get to the hospital or suffers from a severe underlying condition, such as cancer.

One of the tasks we as solicitors face is to identify what the outcome would have been if it was not for the healthcare professional's negligence. The challenge is to establish the difference between acceptable and unacceptable outcomes.

The other side will almost always argue that the harm caused by 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.

How do we prove it? An outside viewpoint.

It is often difficult to find suitable experts based in Ireland who are willing to provide a report which might be used to support a claim of medical negligence.

For this reason, it is usually necessary to retain medical experts in the UK and sometimes further afield. Regrettably, a patient who suspects they may have been the victim of medical negligence is put to the additional inconvenience and expense of having to retain a foreign expert.

However, we make this step easier. We have built up a panel of consultants over the years who are recognised experts in their respective fields.

It is essential to understand the role of the expert witness in cases like this. They usually have a dual role. They give evidence of the required professional standard in the case. They also provide evidence on how they consider that standard was used in the case.

Ultimately, however, it is a matter for the Court to decide which side has presented the most persuasive case.

How long do I have to take a case?

The first step to establishing whether there is a viable case is to look at the Statute of Limitations.

Under the Statute of Limitations, a person has two years to commence proceedings from when the negligent event occurred.

However, it is quite possible that someone may not know that they have been a victim of negligence within a two-year timeframe. In such a case, a person may rely on "the Knowledge Principle".

Effectively, a patient has two years from the date of the incident or two years from the date they discover that the incident may have caused the injury.

However, they are also fixed with knowledge where they ought to have known the facts, resulting in them having a case of medical negligence.

This extension of the two-year time limit can be quite challenging to pin down and varies from case to case.

For more, see the Lynch Solicitors website.