Medical Negligence Due to High Pressure Hospitals

Increased pressure on South Australian public hospitals is leading to more cases of medical negligence, writes TGB’s Mal Byrne.

The 2014 Productivity Commission study into the Australian public health system confirmed that South Australian public hospitals and indeed all Australian public hospitals are feeling the pressure.  The study revealed that the number of sentinel events (hospital errors with serious consequences including death) has increased as well as the number of mortalities, but the statistics were not alarming.  However, the reality is that given the volume of patients that public hospitals see and treat combined with funding pressures that lead to staff pressures and also that our public hospitals are teaching hospitals with inexperienced staff, serious errors do occur. Sometimes that human error can have serious consequences including death.

If you have been treated in an emergency department of a public hospital or admitted to a public hospital and suffered injury as the result of an error in that public hospital, you should seek legal advice as you may have a claim in negligence.  You need to remember that you cannot sue for a near miss.  If the hospital committed a grave error, but the error was corrected or the serious consequence averted, you cannot sue.  You have to be significantly impaired for at least seven days to pass the threshold for a claim but the reality is that the health consequence of any bad medical outcome that you suffer has to be relatively serious in order for you to obtain the type of compensation to make it worthwhile instructing a lawyer and pursuing a claim.

If you consult a lawyer regarding the hospital error, the lawyer will obtain copies of your medical records and then consult a suitably qualified expert to obtain an opinion on the standard of care provided to you by the hospital, and whether the error that occurred has caused the damage that you suffered.  If you do not have the funds to cover the cost of an expert opinion, your lawyer can apply to the Law Society of South Australia Litigation Assistance Fund, which runs a disbursements only funding scheme to cover that cost.  A Panel of three lawyers will assess the application.  They look at your medical records and the history and evidence and make an opinion on your prospects of success.  If the Panel think that you have reasonable prospects of success they will grant funding on the basis that the Fund recovers double the funding back from your settlement if you are successful in obtaining compensation at the conclusion of the claim.  If you are not successful, the Fund writes off the monies paid.

If the expert opinion is supportive that the negligence has occurred and the consequences are serious, your lawyer can then move on to the next stage which is to obtain evidence on your loss and then formulate a settlement proposal for presentation to the hospital and its insurers.

Public hospitals do run internal complaint systems.  The idea is for the hospital/doctor and patient to engage and for the hospital to honestly critique the services provided, whether the patient was let down in any way and what improvements can be made to ensure that the error or bad medical outcome does not occur again.  Patients can participate in this system without giving up their right to take civil action against the hospital. There is a benefit to hospitals in engaging in this process even though they can still be sued.  When I am instructed by a patient who has gone through the internal patient review process, it is usually because they are unhappy with the outcome of the process.  I cannot recall an instance where I have ever been instructed by a patient who has been entirely happy with the internal review system.  Patients who instruct lawyers in these circumstances are usually not convinced that the hospital has taken proper responsibility for what happened.

Patients can also complain to the Health Services Complaints Commissioner.  If the Commissioner investigates the complaint and finds that the service has been less than adequate, the Commissioner has the power to make recommendations about the conduct of the doctor or hospital and whether either needs to take some remedial action or whether disciplinary action is necessary.  A finding by the Health Services Complaints Commissioner against the hospital does not necessarily mean that the hospital has been negligent.  They are separate questions, but if the Health Services Complaints Commissioner has made a finding that the care provided was less than adequate, you should seek legal advice as it’s likely that you have a claim.

In summary, we need strong, well-funded public hospitals and by and large, our hospitals do a fine job in difficult circumstances.  However, they are not perfect and they will never be perfect.  If you happen to be one of the unlucky people who fall foul of individual or systemic error in a public hospital, you should see a lawyer.

For advice about your medical negligence matter, contact Mal to arrange a free initial interview. 

Tindall Gask Bentley is South Australia’s largest personal injury law firm.