How Do I Know If I’ve Been Affected By Medical Negligence?
It can sometimes be difficult for a patient to know whether their poor outcome has occurred because of negligent treatment or just because of the risks associated with certain procedures, the fact they were already sick or injured when they consulted the doctor or hospital and not all medical problems are fixable.
Often, patients have their own feeling that the treatment they received was not competent, have the impression the doctor wasn’t listening properly to their symptoms, were too busy to give them the attention they should have, missed a diagnosis or prescribed the wrong medication.
Occasionally, nurses or other doctors or hospital staff hint to the patient that something is wrong.
In order to make a successful medical negligence claim, the following must be considered:-
Four elements need to be established in order to prove Negligence:-
1. Duty to exercise reasonable care and skill
It is accepted that a Doctor/patient relationship always gives rise to a duty for the doctor to take reasonable care.
The Civil Liability Act provides that the medical practitioner is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, the risk was not insignificant and, in the circumstances, a reasonable person in the medical practitioners’ position would have taken those precautions.
When considering whether a reasonable person would have take precautions against a risk of harm the Court must consider the probability that the harm would occur if care were not taken, the likely seriousness of the harm, the burden of taking precautions to avoid the risk of harm and the social utility of the activity that creates the risk of harm. (Section 4 B CLA).
2. Breach of Duty to exercise reasonable care and skill:-
On the assumption that the medical practitioner owed the patient a duty of care the patient must prove that the medical practitioner breached his/her duty by failing to take reasonable care.
It is important for patients to understand that a doctor is not automatically liable for making a mistake or for an adverse outcome.
A doctor will only be liable if it can be proved that he/she failed to exercise the standard of skill expected of an ordinary competent Doctor.
Whether the Medical Practitioner has failed to take reasonable care or not is a matter for expert evidence. The expert evidence must address the issue of whether the medical practitioner acted in a manner that, at the time the service was performed, was widely accepted in Australia by peer professional opinion as competent medical practice. (Section 5 O CLA).
3. Injury/Damage as a result of the breach of duty to exercise reasonable care and skill:-
Once it has been established that a medical practitioner failed to take reasonable care, the patient must prove that he/she suffered some injury or loss as a result of the breach.
The loss usually relates to a loss of wages or out of pocket expenses incurred as a result of treatment of the injury.
The Civil Liability Act provides that no damages may be awarded for non economic loss (pain and suffering) unless the severity of the non economic loss is at least 15% of the most extreme case. There is no particular formula to measure non – economic loss. It is an issue which the court will determine on a subjective basis, taking into account each patients particular client instances.
The entitlement to damages for non – economic loss has been greatly restricted by Section 16 of the Civil Liability Act. If it cannot be established that the patient has suffered a non – economic loss of at least 15% of a most extreme case, the patient is not entitled to any compensation in this regard.
4. Causation/Foreseeable – the injury/damage must have been caused by the breach and must have been reasonably foreseeable:-
Once it has been established that the medical practitioner has breached his/her duty of care and that the patient has suffered an injury and/or loss the patient must establish that the injury and/or loss was caused by the medical practitioner’s breach.
To satisfy the issue of causation the following elements must be established:-
- That the negligence was a necessary condition for the occurrence of the harm; and
- That it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused. (Section 5 D CLA)……..
Each of these elements are explained in more detail below.
If these four elements are proved by a patient, a medical practitioner may defend a claim on any of the following basis:-
1. Reasonable care and acceptable medical practice;
2. Patient has not suffered injury or loss;
3. Contributory Negligence;
4. Voluntary assumption of risks;
5. Accidents, Emergencies and “Good Samaritan” laws.
Each of these defences are explained in more detail below.
The Civil Liability Act provides that a Medical Practitioner does not incur a liability in negligence arising from their provision of medical treatment if it is established that the medical professional acted in a manner that, at the time the treatment was provided, was widely accepted in Australia by peer professional opinion as competent professional practice.
The peer professional opinion can not be relied up if the court considers that the peer opinion is irrational.
Peer professional opinion does not have to be universally accepted to be considered “widely accepted”. (Section 5 O CLA)
Failure to Warn:-
Most medical treatments and procedures come with an element of risk.
If a medical practitioner fails to provide a patient with information in relation to risks and one of those risks or adverse outcome eventuates, despite reasonable care being taken by the practitioner, human nature dictates that a patient genuinely believe that they would not have had procedure has they know of the risk of the adverse outcome which did in fact eventuate.
Section 5 D of the Civil Liability Act makes it quite difficult for a patient to establish causation in failure to warn cases. In other words, this section is specifically intended to counteract the natural tendency of injured patients to give evidence they would not have had the procedure that caused their injury had they known of the risk.