You may not like the treatment you have received from your doctor or your hospital. But, that does not necessarily mean you have been the victim of medical negligence. Your care team may have done everything that they could and still not managed a favourable outcome. So, just how do you decide whether you or your loved one has suffered from medical or clinical negligence? Well, there are four main stages or elements used for determining whether medical negligence has taken place…
A duty of care
First, you must show that the individual or organisation you believe caused you to suffer unnecessarily had a duty of care to you. While in other cases of negligence, this could be hard to prove, in medical negligence, when you are talking about doctors, nurses, dentists, opticians or other healthcare professionals, it’s usually a simple step. As soon as a clinician or medical professional has accepted a responsibility to provide care or treatment to a patient, then they owe a legally enforceable duty of care to them.
Breach of duty
Once you’ve proved that duty of care existed, then the next step is to show there has been a breach of that duty. It comes down to whether the standard of medical treatment you received was not up to scratch. A clinician may have failed to do something. Perhaps, for example, they have failed to diagnose a condition which they should reasonably have been expected to spot. Or they could have done something they shouldn’t have. In extreme cases, surgeons have operated on the wrong side of the body or anaesthetists have made mistakes leading to patients waking up mid-operation. Of course, not everything goes perfectly and mistakes do happen. That doesn’t mean medical negligence has occurred in all cases.
This stage involves showing that the injury or condition you’re suffering from has been caused as a direct result of the negligent treatment you have received. Any pain or suffering that could have been expected as a result of treatment won’t be taken into account. In medical negligence, you are essentially claiming for any pain or suffering which is additional or which should not have happened at all. This part of any action is often referred to as the “but for” principle. For example, but for the surgical swab left inside her body, she wouldn’t have needed extra surgery or but for the lack of a diagnosis, her condition could have been successfully treated.
Once the initial stages have been proved, then it is up to you to show that you have suffered a loss or damage as a result of the negligence you have suffered. This isn’t limited to financial damage. You may have suffered from emotional damage as a result of losing a loved one due to medical negligence or of suffering a serious injury yourself. You may also have suffered a financial loss. Perhaps, for example, you’ve been unable to work for a period of time because of the negligent treatment which took place. Or maybe you’ve had to give up work to care for a family member who has suffered as a result of medical negligence.
When we’re ill or injured, it’s natural to put our faith in the hands of medical professionals. Usually, that faith is more than justified. But, when it’s not, it’s important to think about whether the care you’ve received could have been negligent under these four stages, to make sure you get any compensation you’re entitled to.