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, including Ireland, 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.
For a medical negligence claim to be valid, it is not only sufficient that a health care professional simply violated the standard of care. You must also prove and this is the difficult part that you have sustained a personal injury that would not have occurred in the absence of negligence. A bad outcome by itself is not negligence. You have to prove that the negligence caused the injury. If there is an injury or symptoms without negligence that did not cause the resulting situation, there is no case to answer
. 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.
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 an award 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 and that is essentially that there was a duty of care owed to the patient, 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 then the patient then claims Medical Negligence against the Medical practitioner they are wrong as no injury was suffered. It might have been an error, but it is not Medical negligence.
Medical negligence claims are often very expensive to prove, frequently requiring testimony from qualified medical experts. For a medical negligence claim to be possible, you must show that any material injury resulted from treatment received due to medical negligence. If the claim is insignificant then the potential cost of pursuing the claim might be greater than the eventual damages awarded. To pursue a medical negligence claim, you must show that the personal injury results in a disability, the loss of income, unusual pain, suffering and hardship, or significant past and future medical bills.
Mistakes apart from affecting the people who suffer directly from the lack of duty of care there is the wider problem of the lack of confidence that patients have in the Health service processes, especially after the Cervical Cancer screening by a smear test as described above. Will the debacle affect the take up of future screenings? Will it affect Prostate, Breast, Bowel and other types of screening?
Medical negligence is more complicated than most people think. Often what seems to be a nailed on Medical Negligence case turns out, after examination, to be not so.