I’m a Victim of Medical Negligence. Can I Sue?

Most forms of medical treatment involve risk, particularly surgery, but victims of medical malpractice may be entitled to compensation, writes TGB’s Mal Byrne.

If you undergo surgery and happen to be one of the unlucky people who suffer complications such as an infection or bleeding, you will not be able to sue simply because you suffered that complication.  You can only sue the doctor or hospital if you can establish that the bad medical outcome was due to the negligence of that doctor or hospital.

However, before you consider seeing a lawyer, you need to assess whether or not you have suffered damage as a result of the negligent medical treatment.  The Civil Liability Act requires that the person’s ability to lead a normal life must be significantly impaired by the injury for at least seven days to be able to claim damages for pain and suffering.  Some people make the mistake in medical negligence claims of thinking that they can sue simply because the negligence occurred, regardless of the amount of damage caused.

For example, a patient might be understandably angry because they went into ventricular fibrillation on the operating table, because the doctor negligently nicked a blood vessel and caused severe bleeding, leading to shock and system shutdown.  However, if the medical staff managed to rectify the situation and bring that patient back to life and they walk out of the hospital seven days later no worse than when they came in, it is not possible to sue regardless of the doctor’s negligence.  A person will say justifiably “but I could have died”, but if the doctor saved the patient’s life and no long term damage was sustained, they will not have an action.

On the other hand, if the patient’s brain was deprived of oxygen during ventricular fibrillation phase and they had been left with signs or symptoms of brain damage, a lawyer should be consulted immediately.

Medical negligence matters are the most difficult personal injury claims to run for the victim’s lawyer.  The insurance companies that represent doctors defend claims vigorously as often the professional reputation of the doctor concerned is at stake.

Whether or not a doctor has been negligent is usually a matter of professional opinion.  There are some circumstances where negligence has obviously occurred, such as where a doctor operates on a right arm when the injured arm was the left arm.  That is rare.  In almost all cases, you will need another doctor to examine the facts and provide an opinion on the standard of care of the treating doctor involved.

The standard required, is set out in Section 40 of The Civil Liability Act which says that where a person professes to have a particular skill, the standard to be applied is what could reasonably be expected of a person professing that skill.  Furthermore, the standard applied is the standard expected at the time of the alleged negligence.  Hence, if the alleged negligence occurred two years ago, the standard that will be applied is at that date, even if protocols have moved on since that date and that standard would not be good enough now.

When a client instructs a lawyer in a medical negligence claim, the first thing that the lawyer has to do is put together the jigsaw puzzle.  Unlike motor vehicle accident claims, WorkCover claims or public liability claims where there is a discreet incident, medical negligence can be a series of mistakes or one isolated mistake in a long period of treatment.  When investigating medical negligence claims, the first thing the lawyer must do is assemble all of the patient’s records that would form the pieces of the puzzle.  This will include hospital notes, notes of general practitioners and all other doctors who treated the person as well as x-ray results and blood test results.  Once all the pieces of the puzzle are collected, the lawyer then assembles the puzzle in the form of a chronology.  A good chronology is essential.  Sometimes, the issue of negligence can come down to a matter of minutes or even seconds in the case of delayed birth.

Once the lawyer assembles the pieces of the puzzle into a picture, the lawyer can then look at the picture and use his or her experience to try and identify potential areas of concern.  However, inevitably, no matter how experienced the lawyer, a medical expert with suitable qualification and experience is required to look at the picture and identify what, if any, failures of care have occurred.

The medical community in Adelaide is small and doctors are reluctant to provide opinions on these matters.  Usually, the lawyer will have to look interstate for a suitably qualified expert.  This is expensive.  However, the Law Society of South Australia Litigation Assistance Fund has a Disbursements Only funding scheme where the claimant’s lawyer can apply to have the cost of the medical expert’s opinion and report covered by the Law Society.

To prosecute a successful claim, the client will not only have to establish that negligence has occurred, but that the bad medical outcome was caused by the negligence.  Sometimes negligence can be established, but the case fails because the client cannot prove that the outcome of the treatment was directly related to the negligence, or that it would have been any better if negligence had not occurred.  For example, a mature woman presents to her doctor with a lump in her breast. The doctor tells her that it’s just a cyst, nothing to worry about, and sends her away without ordering a mammogram even though the woman hasn’t had a mammogram for ten years. The lump gets larger. Six months later, the patient returns to the doctor. This time, the doctor orders a scan which confirms that the lump is cancerous. The only treatment is a full mastectomy followed by chemotherapy and radiotherapy.

In this case, it’s likely that the doctor will be found to be negligent for not ordering the mammogram at the first appointment. However, to have a viable claim, the patient will not only have to prove negligence, but that if the cancer had been diagnosed six months ago, she probably would have only needed a lumpectomy rather than a full mastectomy, or may not have needed chemotherapy, or that her long term survival prospects would have been better.

INFORMED CONSENT

Another area of medical negligence is informed consent.  This is where a patient who has had a bad medical outcome argues that the doctor negligently did not provide sufficient information to the patient about that procedure or treatment beforehand to enable the patient to make a fully informed decision about consenting to the procedure. However, in addition to showing that informed consent was not given, the patient will have to establish that they would not have proceeded with the treatment if given full warning of the potential risks and complications.

WHAT IF SOMEONE DIES FROM NEGLIGENT MEDICAL TREATMENT?

If someone dies from medical negligence, legal action would still be possible if the estate can prove that medical negligence caused the deceased’s death, but the damages claimable will be limited to past loss – such as past loss of wages, past medical expenses and past care from family members or paid care.  When a person dies, their claim for pain and suffering ends. Any claim for future entitlements also dies with the patient.

However, a parent, spouse, domestic partner, child or grandchild would be able to make a claim for mental harm if they can show that they have suffered a recognised psychiatric illness as a result of the death of the deceased.  Any damages will be limited to those that flow from the recognised psychiatric illness.  There is no compensation for losing your loved one.

People who are financially dependent on the deceased, such as spouses or children, can also make claims for dependency.  Dependency is assessed based on the extent of the financial dependency of the spouse or children of the deceased, the loss of services that the family experiences as a result of the deceased’s death and in the case of children, loss of care and guidance.

American humorist Arnold H. Glasgow said, “The key to everything is patience. You get the chicken by hatching the egg, not by smashing it”. Investigating a potential medical negligence claim is a meticulous process that takes time and patience. Even if the expert evidence turns out not to be supportive of your claim, you will at least get answers to your concerns about what happened and hopefully be able to close the book on the incident, and move on.

For a free initial interview about your medical negligence claim or further information, contact us.