By Michael Green
So you think you have suffered medical negligence? How do you find out if you have a claim?
The first thing to bear in mind is that there is no guarantee that any medical treatment or operation is going to succeed. Even in the best of hands, a small percentage don’t always go to plan, and there is no way to apportion blame for these. The trick is to identify whether you fall into that category or not.
This is an extremely complicated subject, so we will take something of a simplistic approach. The first thing you need to establish is whether or not the doctor (or other healthcare professional – the same rules apply to each) in question was negligent. This is established by a court deciding that the action complained of, or indeed failure to act, was such that no reasonable doctor would have acted, or failed to act, in that way. Take, for example, trying to treat lung cancer with aspirin. It is probably safe to conclude that no reasonable doctor would seek to treat a patient who has lung cancer with aspirin. If a doctor did, then the court is likely to hold that such treatment was negligent. It has been said that to avoid negligence, the doctor must act in accordance with a responsible body of medical opinion. If there are competing bodies of medical opinion as to how a condition should be treated, the courts will not rule that one is right and the other is wrong. All a doctor has to do to avoid liability is to show that they acted in a way which was in accordance with a responsible body of opinion. Establishing negligence is not, therefore, all that easy.
Whether or not negligence has occurred is investigated by obtaining a report from a suitably qualified expert. This usually means a consultant or experienced doctor of the same specialism as the person about whom you are complaining. It has to be a like for like comparison. You will not get terribly far with a report from a gynaecologist criticising the work of a neurosurgeon. The expert is usually given all the relevant medical records and a summary of the facts and they will decide based on the evidence whether or not the treatment received was of the appropriate standard. If they have any doubt, negligence is unlikely to be established.
If after consulting solicitors and engaging with an appropriate expert you find that you are able to show negligence, there is still a further hurdle to go. That is the hurdle of causation. Negligence in medical treatment happens frequently, but, fortunately, not every negligent act or omission leads to harm in a patient. To be entitled to compensation it is necessary for you to show that the negligent act or omission caused, or materially contributed to, the harm which you have suffered. If the negligent act or omission made no difference, you do not have a viable claim.
To take a true, but stark example, we can consider a case in the 1950s when factories employed night watchmen. In this case night watchmen were on duty and one of their number made cups of tea for them all. Unfortunately, when he thought he was spooning sugar into the tea he was, in fact, dispensing poison which had been kept to kill rats. The watchmen who drank the tea became very ill and were taken to the local hospital. The duty doctor was in bed and was asked to come and examine the men. Their symptoms were described to him in that their behaviour was very strange and they were vomiting. He concluded they were drunk and instructed the nursing staff to send the men away and tell them to return in the morning if they were still unwell. The men died.
The widow of one of them brought a claim against the hospital. There can be little argument that the doctor was negligent in failing to at least see for himself what was wrong with the patients. The claimant was, however, unsuccessful because it was concluded that the men had already ingested the poison and, even if they had been examined and treated when they presented to the hospital, their fate was already sealed. In other words, there was negligence but the negligence did not cause their deaths.
So, as you can see, medical negligence is a complex subject and we have only covered a very brief portion of it here today. There are many further things to consider when bringing about a claim which we will cover in future blogs, so please keep tuned. For the meantime, if you feel you have suffered medical negligence you will need to obtain advice from a suitably qualified to source; please do not hesitate to contact us.