Tipp FM Legal Slot – 21st January 2014
Orlagh Wafer on Medical Negligence
Download our – New Year’s Resolution 3 – Medical Negligence Trust your Instincts – notes
Firstly, what is Medical Negligence?
Medical Negligence is essentially an act or omission by a health care professional which is below the accepted standard of care and which results in injury or death to a patient.
How does Medical Negligence occur?
New Year’s Advice for Listeners: Don’t Hesitate in Voicing Concerns and Seeking a Second Opinion!
Medical Negligence can happen because of:
• Diagnosis – i.e. misdiagnosis or delayed diagnosis;
• Treatment – i.e. errors in the medical treatment such as incorrect medication, surgical errors, exposure to infection (MRSA etc.) or;
• Disclosure – i.e. failure to inform the patient of the risks of the treatment of procedure.
One of the main defences raised is “general and approved practice”; if the medical practitioner followed the procedure that should have been followed and if that practice was not defective in any way the doctor would have a defence in that s/he did everything they s/he could and didn’t do any wrong.
Examples of Medical Negligence:
Diagnosis – misdiagnosis or delayed diagnosis
In one case a patient died of a brain hemorrhage. He attended his GP several times before his death complaining of headaches. He was sent to casualty, but was not admitted and the next day he was admitted again, unconscious, and died soon after. The High Court found that the GP was negligent because he did not take into account the man’s version of events and his detailed accounts of the seriousness of his symptoms. The Supreme Court also found in favour of the plaintiff, on the grounds that where the casualty officer ignores and does not follow up on a referral letter, it is an “inherently defective” practice and is negligent.
Treatment – errors in the medical treatment such as incorrect medication, surgical errors, exposure to infection (MRSA etc.)
If you are provided with the incorrect medication you potentially would have a claim against your health care professional. The important point to note with regards any illness or treatment is that if the treatment did not cause you any further injury or if there were no negative effects you would not have a case.
In another case the Plaintiff’s husband had surgery to remove a tumor in his throat. On the second night after the surgery the tracheotomy tube was put out of place. By the time the airway passage was established the man was brain dead. The case was brought on the grounds that the surgeon allowed his patient to recover in ICU where there was no-one trained to replace a tracheotomy tube. The defendants disputed liability on principle of “general and approved practice”. The Court acknowledged that nurses in Ireland are not specially trained to change tubes of this type and that no negligence therefore arose on this point. However, he also noted that this was an emergency situation which required special training. The Court found that failure to have a person, nurse or doctor in the ICU who was trained in the replacement of a tracheotomy tube, under the circumstances, was an “inherent defect”. The surgeon was found guilty of negligence because the deceased would not have died if a trained person been present in ICU.
Disclosure – failure to inform the patient of the risks of the treatment of procedure
An example of a case due to a failure to disclose arose in 2000. The Plaintiff underwent bone graft for a dental implant procedure. This resulted in damage to a nerve in his chin and he suffered chronic persistent neuropathetic pain. Before the operation the practitioner told the plaintiff that there was no guarantee that there wouldn’t be unforeseen complications. However, he did not disclose to the plaintiff that there was a risk of the chronic neuropathetic pain, which resulted. Expert witnesses said the risk of damaging the nerve was too remote to require disclosure. In the High Court Kenny J held that since the injury was a known and foreseeable consequence of damaging a nerve, the fact that it was unlikely was irrelevant. He adopted the “reasonable patient assessment of disclosure”, which is used by the courts in America and Canada. This means that the standards of disclosure for medical practitioners should be set by patients instead of set by doctors for doctors. In his judgment Kearns J said that all material risks should be disclosed by doctors and they must consider:
• the severity of the consequences
• the frequency of risk
• the plaintiff’s particular circumstances prior to the surgery.
The plaintiff failed to recover damages because although the defendant had breached the duty to disclose, the plaintiff had failed to establish a connection between the non-disclosure and the injury. The court referred to the evidence given that the Plaintiff had been reluctant to attend pre-operation consultations. This reluctance made all the difference.
What kind of medical negligence cases have arisen over the years?
New Year’s Advice for Listeners: No-one is Immune from Medical Negligence!
Again, we advise listeners to trust their instincts if they feel that something is wrong with the treatment they receive. Unfortunately, no-one is immune, mistakes can happen.
We have dealt with a broad range of medical negligence cases over the years. We have represented clients in the areas of cancer misdiagnosis, orthopaedic and surgical negligence, cerebral palsy and neonatal claims, amongst others.
We are currently representing a significant number of people who have been affected by the DePuy hip implant recall. Many of our files against DePuy are now at an advanced stage.
How is Medical Negligence proven?
New Year’s Advice for Listeners: Appoint Experts to Prove Your Injury is a Result of Negligence!
There are four main steps in proving medical negligence:
• Duty of Care – a legal duty is owed whenever a health care provider or hospital undertakes to treat a patient;
• Breach of Duty of Care – it must be shown that the health care provider in question failed to follow the relevant standard of care;
• Injury – the breach of duty must have caused injury and;
• Damage – Regardless of whether or not the health care provider was negligent, there is no basis for a claim in negligence without damage, be it monetary, physical or emotional.
What steps do you take to establish a possible case of Medical Negligence?
New Year’s Advice for Listeners: Ensure Your Case is Managed Professionally!
Medical negligence claims, in a similar way to personal injury claims, are made up of a series of hurdles. If you do not clear the first hurdle you cannot move on to the next.
To establish a case in medical negligence we need to take these steps:
• Take up copies of all medical records and check them. In some cases we may even send them to a medical records expert for analysis;
• Write to the doctor, health care professional or institution we believe is responsible for the injuries caused;
• Medical experts specialising in the particular area of medicine involved will then be asked to consider whether or not the treatment received was negligent or sub-standard and if so the extent of the damage it caused.
• If we consider that we have enough evidence to prove a case of medical negligence, then we advise starting court proceedings immediately.
• Clinical negligence cases can be settled by negotiation without the need to proceed to a full trial but they are rarely resolved without starting court action.
In terms of the time limit for bringing a claim, how long does a person have to make a claim for medical negligence?
New Year’s Advice for Listeners: Don’t Delay by Second-Guessing Your Symptoms!
The Statute of Limitations (Amendment) Act 1991 introduced the ‘date of knowledge’ for personal injury cases. The date of knowledge is applied when the date the wrong/injury takes place differs from the date the wrong/injury is discovered. This means that in situations where the injury may not be obvious at first the time limit for actions does not begin until the injured party is aware of the injury.
While, generally speaking, a person has two years to make a claim for medical negligence, the date of knowledge has been applied in medical negligence cases. A person who receives a negligent medical procedure may not have knowledge of the injury at first until the injuries cause problems or they become aware that such problems arose as a consequence of such procedures. The ‘date of knowledge’ ensures that the time limit does not run out before a person realises they have an injury/action.
Making a Claim for Medical Negligence
If you, or a family member, have suffered injury due to the actions or inactions of a medical professional you may be entitled to compensation. You will be able to discuss the facts of your situation, in detail, with a member of our medical negligence team. As experts in the area of medical negligence, we will assess your complaint and assist you in reaching a decision on whether to make the claim, or at the very least investigating it further.