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Medical Negligence

Just as every motorist owes a duty to other road users to take reasonable care, health professionals are also under a common law duty to take reasonable care for the safety and well being of their patients. Breaches of that duty may give rise to claims for damages. The main difference is that while most people are able, as a matter of common sense, to decide whether driving a car in a particular way in particular circumstances is careless, many medical treatments involve highly specialised and technical skills. A court will usually need evidence from medical specialists about correct procedures and usual safeguards followed in particular medical treatments before a decision can be made about whether or not a particular health professional has been so careless in providing that treatment to a patient as to be considered negligent.

What is negligence?

Negligence is a failure to take reasonable care to avoid causing injury or loss to another person. There are four steps in proving negligence. The plaintiff must prove:

  • that there is a duty in the circumstances to take care duty of care
  • that the behaviour or inaction of the defendant in the circumstances did not meet the standard of care which a reasonable person would meet in the circumstances (breach of duty)
  • that the plaintiff has suffered injury or loss which a reasonable person in the circumstances could have been expected to foresee (damage)
  • that the damage was caused by the breach of duty (causation).

The standard of care for a health professional is that expected of the reasonably competent practitioner of that profession. The actions of the health professional will be compared with the standard. The court, not the professional, sets the standard, so even if a particular practice is common or accepted by other practitioners, it may still be negligent. Negligence can occur in any aspect of professional practice, whether history taking, advice, examination, testing or failing to test, reporting and acting on results of tests, or treatment. The standard is one of reasonable care, not of perfection. The court will decide having regard to all the circumstances whether the health professional has been negligent. Negligence is different from mistake or error of judgment. The fact that a risk of treatment eventuated, or that a desired medical outcome was not achieved, does not necessarily establish negligence.

A practical effect of this test is that if a person chooses to have (or through an emergency, is forced to have) a general practitioner perform surgery or administer general anaesthetic, then the person cannot expect the degree of skill of a specialist surgeon or anaesthetist. However, if the general practitioner holds himself or herself out as having special skill in surgery or anaesthetics, then the patient may be entitled to expect specialist skill.

Difficulties in medical negligence cases

Very few medical negligence cases are simple or clear cut. Often a lawyer will have to collect a great deal of information, such as hospital records and expert reports, before he or she can tell the patient whether there is a good case. Even then, after a case begins and opposing medical opinions are presented, the case becomes more difficult as the court has to choose which medical opinions to accept.

Common difficulties

Some common difficulties encountered in medical negligence cases, from the patient's point of view, include:

  • medical treatment very often includes a risk of some sort. Very rarely can the total safety of any procedure, even if it is performed with proper care and skill, be guaranteed. Hence, just because the treatment has been unsuccessful, or even harmful, does not mean that there has been negligence.
  • what amounts to negligence of a professional person is a matter of opinion and judgement. The court does not base its judgement on what the patient or the practitioner concerned have to say, but on the opinions of suitably qualified experts. Often these experts disagree about what is the cause of the problem, or about what the practitioner should have done in the circumstances.
  • it is often difficult to decide what the patient's health would have been like if the problem had not occurred. The court tries to work out whether a patient would still have had the treatment if warned of the risks and whether the presenting condition would have impaired his or her future health and independence in any event.

Access to medical records

See Obtaining Medical Records.

Assessing damages

Apart from the difficulties in winning a medical negligence case, assessing the damages is also difficult. The client in a medical negligence case is almost always suffering from a medical problem prior to the alleged negligence. Only the medical problems will flow from the negligence will lead to compensation. Other subsequent medical problems which cannot be shown to flow from negligence, do not attract compensation.

Obtaining independent medical reports

Almost no medical negligence case can be won without supportive and credible evidence from an independent specialist health professional but it can be difficult to find a health professional who is prepared to become involved in such a case. Obtaining independant medical reports can also be very costly.

Taking legal action

In South Australia, an action for negligence causing personal injury must be begun within three years of the cause of action arising (which is usually the date on which the relevant medical treatment or advice was provided). If the documents are not filed in court within the three year limit the claim becomes statute barred, which means the court's permission is required for the claim to go ahead.

However, an applicant must within 6 months after the day on which the incident giving rise to the personal injury occurred, serve on the person potentially liable a written notice of injury [See Uniform Civil Court Rules 61.6(2)]. If the applicant is not aware that they have suffered personal injury, or that the injury has caused material loss or damage or was arguably caused by the negligence of the person potentially liable, then the time limit of 6 months is extended until one month after the person becomes so aware [r 61.6(3)].

An extension of time to begin court proceedings can be granted in certain circumstances. Under section 48(3) of the Limitation of Actions Act 1936 (SA), the patient must show that a material fact came to his or her attention less than twelve months before the application for an extension of time was made and that it is just and equitable to extend the time. If the other party has been prejudiced (disadvantaged), for example, if records have been destroyed or witnesses have disappeared or died, an extension may be refused. This is a very complicated area and it is important to seek legal advice as soon as possible as special time limits apply in product liability claims.

Help and advice

The investigation and pursuit of a possible medical negligence claim is a very complicated matter. It is usually very expensive to pursue a medical negligence claim to hearing in a court. The only way to find out whether a medical negligence claim is worth pursuing is to consult an experienced solicitor. Patient counselling services may help with communication problems with a doctor and may help with anger or frustration following an unsuccessful medical procedure, but only a solicitor can help a person decide whether to pursue a claim. When choosing a solicitor, ask the solicitor whether he or she has experience in medical negligence claims. The Law Society of South Australia can provide referrals to solicitors practising in this field.

Very often, the solicitor cannot tell at the outset whether the claim will succeed. He or she may have to obtain copies of medical records, and opinions from one or more experts, before any definitive advice can be given. This means that it can cost hundreds of dollars just to obtain a definite opinion about the chances of success of the case. Many medical cases are not clear cut, and even if advised that there is a strong case there can be no guarantee of success.

The duty owed by hospitals to patients

Where a health professional is employed or appointed by a hospital and is negligent, the hospital itself is responsible to the patient as the employer or hirer of the health professional.

Where a hospital treats a patient in a casualty section, or admits a patient, it may be regarded as making an undertaking to the patient that it will take reasonable care to provide for all the patient's medical needs. The hospital will not be able to avoid liability by saying it delegated the care of the patient to an apparently competent doctor.

Other claims

As well as negligence, other claims may be made against a doctor, such as assault or breach of contract. This area is complex and advice from a solicitor will be required.

    Medical Negligence  :  Last Revised: Fri Apr 12th 2013
    The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.