Definition of Medical Negligence
Medical negligence (also known as medical malpractice) refers to a tort in which a healthcare professional fails to fulfill their duty of care towards a patient, resulting in bodily harm or injury. In cases of medical negligence, a patient may file a claim against a healthcare provider (such as a doctor, nurse, or hospital) to seek compensation for any damages caused by the negligence.
Once an incident occurs, the performance and actions of the involved healthcare professionals will be compared with the skills and professional standards of their peers in similar or identical circumstances. If the procedures adopted by the healthcare professional do not differ from those generally accepted by specialists, the court will evaluate the case based on the standard of specialist care.
Elements of Medical Negligence
To successfully bring a medical negligence claim, the Plaintiff typically needs to prove the following four elements:
Duty of Care Owed by the Healthcare Provider: When a healthcare professional establishes a doctor-patient relationship, they have a legal duty to provide reasonable care that meets professional medical standards.
Breach of Duty of Care: The healthcare provider fails to adhere to the required medical standards—care that a reasonably competent medical professional would provide under similar circumstances. This may include misdiagnosis, surgical errors, improper handling of medications, or inappropriate treatment.
Causation: The Plaintiff must demonstrate that the healthcare provider’s negligence directly caused the patient's harm. If the harm was caused by other factors unrelated to medical negligence, the provider may not be held liable. This involves two types of causation:
Factual Causation: The harm would not have occurred without the provider’s negligence.
Legal Causation: There must be a sufficient legal connection between the provider’s actions and the harm.
Damages: The Plaintiff must prove they suffered actual harm due to the provider’s negligence. These damages may include physical injuries, mental suffering, additional medical expenses, or financial loss.
Common Examples of Medical Negligence:
Misdiagnosis or Delayed Diagnosis: The doctor fails to correctly diagnose the condition or delays the diagnosis, leading to worsening of the illness.
Surgical Errors: Mistakes during surgery, such as operating on the wrong body part or leaving surgical instruments inside the patient.
Medication Errors: The doctor prescribes the wrong medication or incorrect dosage, causing unnecessary side effects or health problems.
Inappropriate Treatment: The healthcare provider chooses an unsuitable treatment plan, which worsens the patient’s condition or leads to new health issues.
Obstetric Negligence: During childbirth, the healthcare provider fails to reasonably manage the health of the mother or baby, causing injury to either.
Compensation for Medical Negligence:
If a healthcare provider is found legally liable for negligence, the patient may be entitled to the following compensation:
Economic Losses: Includes medical expenses, rehabilitation costs, medication fees, and lost income due to the negligence.
Non-Economic Losses: Compensation for pain, suffering, mental anguish, and diminished quality of life caused by the negligent act.
Future Losses: If the negligence results in permanent injury, the patient may seek compensation for future medical expenses and lost income.
Can You Represent Yourself in a Medical Negligence Claim?
In theory, the Plaintiff can handle the case on their own. However, most individuals lack the legal skill, knowledge and understanding of the rules and procedures, and may mistakenly believe that simply presenting the facts of the incident will suffice.
Court Considerations
According to the Rules of the High Court, Order 18 Rule 12(1A) and (1C), and Practice Direction 18.1, paragraph 66, the Plaintiff must serve an expert medical report alongside the Writ of Summons and/or Statement of Claim to substantiate their claims regarding legal responsibility and causation.
In medical negligence cases, healthcare providers may raise several defence, including:
Reasonable Practice (The Bolam Test): Based on Bolam v. Friern Hospital Management Committee, the healthcare provider may argue that their actions were in line with accepted medical standards at the time, even if the patient suffered harm.
Lack of Causation: The provider may argue that, even if negligence occurred, the patient’s harm was caused by other factors (such as a pre-existing medical condition), not by the negligence.
Voluntary Assumption of Risk: The patient may have been informed of the risks of treatment and voluntarily accepted them, absolving the provider of liability.
If the Plaintiff fails to submit the required legal documents or expert medical reports, the court may not be able to determine which actions deviated from the duty of care, or whether there is a causal link between those actions and the Plaintiff’s injury. Furthermore, if the medical report is not served, the Defendant may be unable to adequately prepare their Defence, which could lead the court to dismiss the Plaintiff’s claim and issue an order requiring the Plaintiff to compensate the Defendant’s legal costs.
Therefore, intended Plaintiffs are advised to seek independent legal advice, read, and understand the relevant rules to avoid unfavourable outcomes.
October 2024 Dr. Anthony Lai and Mr. Alan Lau
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