A claim in the law of negligence requires that: * there was a duty of care owed to the person who has suffered harm or loss; * the duty of care was breached ; and * the breach caused the harm or loss suffered.. In some cases, medical practitioners may perform the wrong surgery or mix-up medications, leaving themselves open to litigation. However, it was argued that even if the registrar had attended, it would not have been appropriate to intubate the child at that point, and that therefore the final subsequent respiratory arrest and hypoxic brain injury sustained by the child could not have been prevented by earlier action. The person making the claim (the claimant) must establish on the balance of probabilities that negligence has occurred by the hospital or doctor (the defendant). Adequacy of note keeping to help defend any claims is vital. by departmental/consultant reviews of log books on rotation changes, etc.). The Courts often need to do little more than recognise that a duty of care exists (and then move on to other parts of the negligence claim). However, if it can be shown that the breach materially contributed to the damage or it is more likely that the damage was due to negligence than another cause that is usually sufficient. What types of medical negligence can occur? Surgery or treatment negligence: While there are always risks when undergoing an operation or treatment, patients have a certain expectation of the level of care they should receive. Proving medical negligence is similar to most other forms of negligence. Hence, it has been argued by medical law academics that any patient we come across in our professional environment is owed a duty of care, not only by the doctors the patient comes into contact with, but also by those who are employed by the Trust to deliver patient care. engineers). A monetary value will attach not just to actual expenses incurred (to include a loss of earnings) but additionally to the loss of amenity experienced and the pain and suffering endured in consequence of the injury. 1. Where a duty of care is breached, liability for negligence may arise. The duty of care was breached or violated. They only do so in circumstances where the doctor has not acted with a level of care that would be expected from a reasonably competent professional. Once the appropriate standard of care is … An example of failure to obtain informed consent would be if the patient’s first language isn’t English and the hospital doesn’t bring in a translator to help communicate important information. I think my GP has been negligent. The relationship between a doctor and a patient is a special one. In this series, we will look at the essential parts of a personal injury claim against a doctor, dentist or other health care professional. Generally, the plaintiff needs to prove four elements: The medical personnel owed them a duty of care. Note: There may be defences that may reduce the amount of compensation payable, or defeat the claim. Diagnostic failures: If your medical practitioner misdiagnoses you or fails to spot an injury or illness in time, this can be considered negligent. Malfunctioning equipment could have serious ramifications for a patient, especially if it’s a life-saving device such as a pacemaker. This is often referred to as "but-for" causation, meaning that, but for the defendant's actions, the plaintiff's injury would not have occurred. However, where there has been a potential breach of professional duty, this is reinterpreted as that of the standard of comparable professional practice. How long after the fact can I make a medical negligence claim? BREACH OF DUTY OF CARE IN MEDICAL NEGLIGENCE: SCOPE AND LIMITATION If anything they do (of fail to do) leads to your coming to harm, then they have failed in that duty. The starting point for any medical negligence claim is something called the “Duty of Care”. Negligence in its legal sense means a failure in law to do what a reasonable person would have done in the circumstances. The medical standard of care is also said to act as the first element of a medical malpractice claim. What types of injury compensation claim do Gerard Malouf & Partners cover? You should also receive money to cover expenses relating to any past and present medical care required to help you cope with your injuries. It is also of concern that recent prosecutions have generally been of doctors in training, where it is perhaps easier to establish a sufficient degree of incompetence. If you’ve suffered a personal injury and feel that someone is responsible for causing that injury, to make a claim for medical negligence compensation against that person you need to establish that a duty of care was owed to you and that the duty of care was breached. How do I prove medical negligence has occurred? When a patient is admitted to hospital, a duty of care relationship is created, which can be applied to any doctor coming into contact with the patient not just the admitting team. The content of such a duty has been described as requiring a health professional to exercise reasonable care and skill in the provision of advice and treatment in all the ways that a doctor or other health professional relates to his/her patients. Compensation is paid in order to return the claimant to the position they would theoretically have been if the harm had not occurred. Bolitho, however, is not universally applied and many judgements of negligence still rely on the principles of peer review outlined in Bolam, although the greater use of evidence-based medicine, and the extensive practice guidelines produced by bodies like NICE, now allows judges to have objective benchmarks of practice for comparison. Establishing causation can be difficult, as it must be demonstrated that ‘but for’ the doctor's action/inaction harm would not have occurred. After reading this chapter you should be able to: ■Understand the essential elements of a negligence claim ■ Understand the reasons for retreating from the Annstwo-part test ■Understand the role of policy in establishing the existence of a duty of care ■Critically analyse the concept of duty of care ■Apply the tests to factual situations to determine the existence of a duty of care It was concluded, however, that negligence could not be established, as evidence was provided that at the time it was not universal practice to administer muscle relaxation, as contrasting opinions existed as to the benefits of muscle relaxation balanced against the increased risks of the relaxant. Such a situation would apply to procedures performed on the wrong limb/side (e.g. Medical negligence is a three-part test whereby a duty of professional care is owed to a patient and as a consequence of a breach of that duty, the patient suffers harm. To prove negligence, the plaintiff needs to demonstrate the defendant's duty of care, the standard of the defendant's expected caregiving, and legal breach of that duty of care to the plaintiff. Medical negligence can be an extremely complex area of law, but a seasoned firm will have extensive contacts within the health care sector to ensure they have access to the information they need to build your case. To establish liability a plaintiff must first establish that the defendant owed a duty of care towards the plaintiff. What factors do the courts consider in medical negligence claims? Call us now on 1800 004 878 to book a free appointment with one of my compensation experts, or email your enquiry. For Permissions, please email: journals.permissions@oup.com, http://www.nhsla.com/Claims/Schemes/CNST/, Copyright © 2020 The British Journal of Anaesthesia Ltd. Potentially fatal consequences as negligence appropriate standard of care, the decision with. 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