MEDICAL MALPRACTICE (Negligence)

MEDICAL MALPRACTICE CASES

Medical malpractice (commonly called negligence) cases are difficult cases because most of them have experts on both sides of the case citing what is, or is not, reasonable medical practice and what a competent practitioner would know, diagnose, perform or do, or not, under similar hypothetical circumstances.

The cases are difficult also if they cause public controversy (as with Dr Patel’s trials), or experts are not willing to support, or not, a colleague.

The cases are also difficult because injury or harm itself and its direct cause is difficult to prove. After a road accident, for example, a person fit and well beforehand then has an (mostly) obvious injury and obvious cause. Unlike that a medical malpractice victim may not be fit and well before the mishap, and there will be different opinions about whether the treatment was appropriate, or not, and the (or contributing) cause of injury, or not, and even whether, or not, there is injury.

Types of Medical Malpractice

Medical malpractice can happen in many situations in doctor’s practices, in hospitals and clinics and as procedures and diagnostics evolve and become more complex there will be more situations. Cases range from obvious examples such as swab or instrument left inside a patient to complex contested cases with qualified on both sides of the case. Also case law and outcomes will change over time. Some of the more common examples of medical malpractice are :

  • Failure to diagnose
  • Misdiagnosis or Delayed Diagnosis
  • childbirth Injuries
  • Medication Errors
  • Anesthesia Errors
  • Surgery Errors
  • Improper treatment
  • Failure to warn a patient of known risks

MEDICAL MALPRACTICE – DO YOU HAVE A CASE?

First you need to have been harmed.
Harm includes more than “injury” in the obvious physical sense. it includes pain, suffering and any psychological effect.
Then you need to prove that the harm was caused by someone who was treating you (or failed to treat you), or the institution employing them, and that the treatment (or lack of) was less than reasonably to be expected.

You also need to establish that the person or institution had a duty of care for you. In most cases that is evidenced by your having consulted or being treated by the person or at the institution.

How do I prove medical negligence?

You need to prove that reasonably expected care or treatment did not happen.
What is reasonably expected? This needs be assessed by comparison with prevailing standards.
If you are travelling in a 3rd world country and have an accident you cannot reasonably expect treatment any better than the locals would get just because you are a tourist and have better treatment at home.
In a developed country such as Australia standards, and what is easily possible, vary between big city’s highest standard, and small town with limited facilities, and the remote areas where any medical assistance is a long way away.

Timeliness

Timeliness is a reasonable expectation. Where assistance or medical opinion needs to be summonsed such as by a call for ambulance, flying doctor, or fetching a doctor from elsewhere in a hospital, and the time taken affects outcomes then you can expect what is reasonable at the time.
A small town hospital without operating facility, or without surgeon and anaesthesiologist present can call for ambulance for an emergency caesarian (for example) but a remote area nurse cannot.
Taking that example further not all deliveries can be performed at the very best hospital, nor should they be. A treating GP has to balance the risk of “complications” reasonably given available diagnostics, and allowing for the questions will follow any tragic outcome about whether that could, or should, have been foreseen and avoided.
We know much of what happens, and decisions that are made, in a hospital are done under time pressure.
Comparisons with reasonable unhurried expectations need to take that into account.

Was diagnosis or treatment wrong, incorrect, or inappropriate ?

You will need to prove that the diagnosis and treatment, or lack of, was wrong in some way, and again, that needs to be compared with reasonable expectations.
Reasonable expectations are what similar professionals would diagnose, decide or do.
Of course opinions on “would diagnose, decide or do” will vary between different professionals, and the defending lawyers will find some to refute your claim, just as your lawyers will need to find some to support your claim.

What is reasonable ?

In a hospital it is reasonable that admissions can assess an emergency and deal with it.
What is reasonable to expect from an operation depends on the procedure.
It is reasonable to expect that operations that are common practice are performed well, accurately, without inadvertent damage to adjacent nerve, tissue or organs.
It would not be reasonable to expect that all brain surgery needing accuracy to 1mm all have good outcome.
It is reasonable to expect that a patient’s tolerance for anaesthesia, and the procedure itself, is assessed well, and the risks are discussed with the patient before proceeding.
It is reasonable to expect that monitoring equipment be functioning and be monitored, that alarms be responded to, and staff be sufficient and capable.

In a GP practice it is reasonable to expect that reception can realise an emergency.
It is not reasonable to expect a GP to call for a whole battery of diagnostic tests just because they are possible. (There is increasing tendency for GPs in US to call for all possible tests for fear of being sued for not doing so).
It is reasonable to expect a GP to call for any test to confirm, or rule out, any diagnosis that could be valid from any symptoms present, or from what patient says, or from patient’s history.
What is reasonable to expect from diagnostics does change over time. Definition of ultrasound and of Xrays increases, as does accuracy and availability of tests of blood or urine.
It is now reasonable to expect knowing about an unborn baby’s Down’s Syndrome or major deformity, but not genetic deformity only apparent from latest chromosome analysis.
It is reasonable to expect that a GP or prescribing doctor is well aware of all (except rare) side effects of medications and takes into consideration, and informs a patient.
And it is reasonable that a prescribed medication be appropriate and adequate, and not be excessive or harmful. (Whether it’s effective or not is another matter).

As in all legal proceedings case law is affected by court judgements and what was held to be reasonable (or not) in any case may affect outcomes in subsequent cases.

Who could be liable ?

Any medical or clinical personnel
Any medical or dental specialists
Allied professionals such as chiropractors, midwives, physiotherapists
Any paraprofessionals such as ambulance and sporting event medics
The clinic or hospital, and possibly hospital administrators.