In the past 20 years there has been a large increase in the number of medical negligence cases being brought as people become more aware of issues involving their health and the problems which can arise when being treated for a medical condition or in hospital. Everyone is now familiar with stories about waiting lists, food, hygiene in hospitals, or as seen or heard stories in the media about operations which have gone wrong. Even if everything appears to go smoothly, medical treatment is still a stressful event and does not guarantee full recovery. Just because you may have well founded concerns about the standard of care which you experience, it does not follow that there is a claim.
Obviously for most people who are ill, the last thing on their mind is the possibility of taking legal action; they simply want to make as full a recovery as possible. But there are occasions on which standards of treatment have been so poor that this is not possible. In such eventualities you may wish to consider the legal remedies that are available to you. However, a medical negligence claim is not an area to venture into without being fully aware of what is involved.
Firstly, human beings are not machines. When going to hospital there is no guarantee that you will make a full recovery. Doctors are not obliged to carry out every possible form of treatment (indeed they may well be taking risks by adopting unorthodox forms of treatment which have a slim chance of success rather than “playing it safe” by simply following the prescribed approach). Sometimes the recognised method of treatment is simply ineffective, and no negligence has occurred.
In any case, if you are seeking compensation, the burden of proof will fall on you. In most cases this is quite straight forward. If you are involved in a car accident there will be witnesses, or if not, experts can usually reconstruct what happened from the damage to the vehicle and the accident scene itself. This is not possible in medical negligence cases. To establish whether the duty of care which is owed has been breached, it is usually necessary to get experts in to look at medical records. There have been many cases where the records have been insufficient, or illegible, and as a result it has been difficult to establish exactly what was know at the time the treatment was offered. This can prove extremely important. In a medical negligence action, your solicitor will have to bring in an outside expert to look at the medical records and put himself in the position of the doctor or nurse at the time the alleged negligence took place. He will then have to establish whether the medical staff acted to the standard of a reasonably competent person with those qualifications. The GP might not be expected to spot a rare tropical disease, but an expert in tropical medical who failed to recognise it might well be negligent.
The expert will then have to establish whether the suffering of the patient is directly caused by the breach of duty of care, which is not always as straight forward as it might sound. For example, a patient attending A & E might have a hairline fracture which is not picked up in x-ray because of swelling and is discharged. However a few days later the pain requires the patient to re-attend hospital where the oversight is detected and proper care provided. In those circumstances, the most likely outcome is that compensation would only be payable for the few days of pain and suffering over and above what might have been expected had the proper treatment been initiated earlier. This is it because the patient would still have had considerable paid during the recovery process. Of course a few days prior to his proper detection and treatment might well have caused considerable aggravation to the injury and this should be factored in.
As with most negligence actions, medical negligence cases tend to run for a considerable period of time. This is particular so for medical negligence cases. Unfortunately, it is unavoidable that there will be a lengthy period of gathering medical evidence, and trying to assess how injuries are likely to progress. Very many people who may wish to bring medical negligence actions find that the difficulties in obtaining legal aid and the delay are disincentives. It can be quite difficult to find experts who are ready to give evidence and sometimes clients have to travel to Great Britain or the Republic of Ireland to find experts will to comment on the treatment which they received. The shear complexity and detail which is required in preparing a case means that most of them take well over a year to even reach the preliminary stage of endeavouring to settle without going to court. Unfortunately there also seems to be reluctance on the part of Trust representatives to negotiate settlement, unless and until court proceedings are actually issued. The motto must therefore be that before embarking on the stormy seas of medical litigation, you must take time to discuss all of the implications with your solicitor. It is better to be disappointed at the outset, than to invest hopes (and often a great deal of money) in a case which may end in disappointment several years down the road.
- 3 Jun, 2014
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