In order for a patient to succeed in a case of medical negligence against a Medical practitioner, a Medical practitioner, surgeon, consultant, nurse, dental surgeon etc they must be able to prove, on the balance of probability, that there has been a breach of the duty of care owed by the Medical practitioner to the patient, and that breach has caused the patient loss and hurt, injury, suffering or harm.
In most jurisdictions, with limited exceptions, the Statute of limitations is two years starting from the date on which the negligence that caused the patient’s injury is discovered by the patient.
In considering whether there has been a breach of the duty of care, you must look at what standard of care is required by a Medical practitioner in those particular circumstances.
Duty of care may be defined as the standard of reasonable care is that of the ordinary skilled person exercising and professing to have that specialised skill.
A Medical practitioner is not negligent if it is satisfied that the treatment was provided in accordance with an opinion widely held by a significant number of respected Medical practitioners in the same relevant field, and that opinion is not unreasonable.
Another way is by taking it from a different angle; you can look at whether the injury would not have occurred but for the Medical practitioner’s negligence.
The burden of the defence against Medical negligence will be on the Medical practitioner to establish that they acted in accordance with peer professional opinion at that time.
A very common way to do this is to take critical evidence from other eminent Medical practitioners. In addition, it is not uncommon for Medical practitioners to produce evidence of the standards of teaching, training and practice, including literature, seminar papers, and ongoing professional development courses on appropriate or widely used alternative treatments.
It is normal that a claim for loss or injury sustained due to Medical negligence could include damages for pain and suffering, along with past and future loss of income, medical expenses, care expenses and legal costs.
You should know that Medical negligence is in fact a legal, not medical term at all and has to meet certain criteria to be proved. It is essential that there was a duty of care owed to the patient, that the duty of care was breached and the breach caused damage or injury to the claimant.
A common error is for example if a Medical practitioner has inadvertently prescribed medication to a patient who is allergic to it and the chemist spots the mistake as their records show that the patient is allergic and does not dispense the drug. If that patient then claims Medical Negligence against the Medical practitioner they will not be successful as no injury was suffered by them. It might have been an error, but it is not Medical negligence.
Medical negligence is more complicated than most people think. Often what seems to be a nailed on Medical Negligence case turns out, after examination, not to be so. Be prepared though for a long and arduous road in a Medical negligence claim and it is essential that you instruct a Personal Injury lawyer to navigate that road on your behalf.