Your medical treatment and management, by law, includes a duty of care administered by a medical expert, whether it be a doctor, surgeon or dentist. Medical negligence is when this medical professional has breached their legal duty of care owed to the patient. Medical negligence claims are different from personal injury claims in that the claimant is required to prove two key elements: that a medical professional failed to carry out their duty of care and that the injury caused was avoidable.
While the vast majority of healthcare professionals and medical institutes will provide the best possible care, negligence does happen, whether it is through misdiagnosis, lack of communication, bad practice or a surgical mistake.
Basics of Negligence
Negligence is a legal term which describes the failure to provide ethically ruled care which is expected in specific circumstances. Imagine a driver who gets into an accident while on the highway. The driver may be held responsible for the injuries and damages suffered by other parties, if he is deemed to have breached their legally ruled duty to obey traffic laws and drive responsibly.
For instance, if the driver fails to stop when the traffic light turns red, the driver is deemed negligent in the eyes of the law. If the violation of a traffic law causes an accident, then this negligent driver will be expected to cover the damages caused to other parties, including pedestrians, passenger and other drivers.
Like drivers, when medical professionals fail to meet the expected standards of their duty of care to their patients, they may be deemed to have acted negligently. So, medical negligence happens when a doctor, surgeon, dentist, nurse or any other healthcare provider performs their duty in such a way that is contrary to the accepted medical care. If a medical professional provides treatment that falls below the accepted standards of medical care under the circumstances, then he or she has acted negligently.
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The specific circumstances under which a victim sustained an injury will determine whether there is a medical negligence case. Despite the advancements in modern medicine, injuries and fatalities are still common in hospitals, and they are not necessarily due to negligence. Infectious disease outbreaks could lead to the loss of life, and may be the result of negligence, but this is not absolute.
While you would be well within your legal right to file a complaint, this does not mean medical negligence. However, if you are to make a formal complaint for medical negligence, you must keep in mind that you have 3 years from the time the incident occurred. If there was a fatality, your 3-year time limit begins from the date of death. If you were a child at the time of the incident, you will be eligible to make a claim from your 18th birthday – which means the 3-year time limit runs out when you turn 21.
What Constitutes Medical Negligence?
It is important that you understand what legally constitutes medical negligence, as this will help determine if you have a case, and whether speaking to a medical negligence solicitor may be worth your while. Here are some common forms for medical negligence – and actions that could be grounds for a claim.
- Birth Injury
The agony of hurt coming to your baby is one a parent wouldn’t even contemplate, but this is what some have to face. Though not all birth related injuries are fatal, some can be regrettably life changing. Claims for birth injury include cerebral palsy, episiotomy, uterine rupture, hip dysplasia, wrongful birth, forceps delivery, etc.
- Surgical Negligence
Though mistakes leading to life changing consequences occur occasionally, it is important to note that the NHS performs millions of operations each year, with huge success. Common grounds for surgical negligence claim may include poor surgical performance, operating on the wrong part of the body, performing the wrong operation, foreign objects left inside the body and organ perforation during surgical procedure.
The pressures GPs and other healthcare providers experience is barely ever outside the spotlight. This is simply because the strain they are under leads to even more misdiagnosis. According to the Daily Telegraph in 2009, misdiagnosis went up as high as 1 in 6 patients. In 2015, the Daily Mail reported that the NHS lost about £4 million a week as a result of compensation for misdiagnosis.
Whether these statements are true or not is up for debate, but one thing is certain: a large number of medical negligence cases stem from misdiagnosis. Common grounds for making a misdiagnosis claim include:
- Failure of a medical professional too refer a patient to an appropriate specialist in time.
- Failure to correctly interpret scan and test results.
- Incorrect diagnosis – whether this leads to incorrect treatment or not.
- Failure to conduct scans, X-rays and investigations when necessary.
- Failure to properly identify a condition or ailment.
Harm and Causation: Making Your Medical Negligence Claim
At the court of law, you will be required to demonstrate that ‘but for’ the action of the medical professional, the victim would have been free from harm. Healthcare providers rarely work alone, making it difficult to establish the cause of harm in relation to a specific treatment or procedure. For instance, paralysis following the repair of an aortic aneurysm can occur as a result of epidural analgesia or even the surgery itself.
Inability to establish causation has led to the failure of many medical negligence claims, as there are often a range of possible explanations for the end result. However, if you can demonstrate that the healthcare provider’s breach of duty has contributed to the injury or it is more likely that the injury was due to negligent care than other factors, then you can make a successful medical negligence claim.
In the absence of reasonable explanations for an outcome, there could still be light at the end of the tunnel. The principle of ‘res ipsa loquitur’ (literally translated as ‘the thing speaks for itself’) can be employed. For instance, if a foreign object is found in the abdomen after a surgical operation, it can only be assumed that there was negligence. This principle also applies when an operation is performed on the wrong spot. In these cases, it is assumed that the causation has been established unless the defendant is able to provide another reasonable explanation.
Medical negligence is a 3-way street: a healthcare provider owes the patients a duty of care, there was breach of that duty, and the patient suffers injury as a result. All parts of this test must be satisfied for a case to be classed as medical negligence.