Medical Negligence in the Dock

Despite all the advances of modern medical science and technology, and all the modern medicines possible – clinical errors can happen. Doctors, nurses, pharmacists and other medical specialists can make mistakes, despite their best efforts and all of their best endeavours for the good of their patients

Medical mistakes can happen, unfortunately. Those mistakes can range from a misdiagnosis, to a disease or illness not being disabled at all, to a simple mistake on the operating table, to the wrong medication being prescribed, and anything in between.

The result of any such medical negligence can be to leave the patient in a worse medical condition, suffering from other ailments or injuries, or even untreated for their initial medical condition. Aside from the physical damage (often extensive) and ill health that follows, it is the mental anguish and pain that can be the worst following a medical error. Recovery and rehabilitation takes time: in many cases, occupational therapy or physiotherapy are often needed. Specialist treatments or medications might be required to recover. Recovering from your injures can be very lengthy – and also expensive. Medical negligence can also take its toll upon your home and family life, and work. There is also the financial aspect to consider.

However, both professionally and legally, doctors and other clinicians are very much held accountable for their actions and the procedures they perform.

Under tort law (part of the UK civil law code), the injured patient can make a medical negligence claim against a clinician.

Under law (and medical ethics), there is a clear duty of care of the doctor towards their patient. Doctors are similarly held to give a very high standard of professional medical cafe and advice to their patients. Where medical negligence is concerned, the question to be asked and established is whether there was there a breach of that duty of care. Did the clinician act in such a way that was substandard, and that resulted in a breach of that duty?

Other factors to establish under law, and under a civil legal claim, are causation and remoteness. Remoteness is whether the damage received by the patient was so remote from the actions of the clinician that it could not have been foreseen – and legally is very straightforward to assess. Causation is when it is legally determined what factor or tractors were responsible for the personal injury. By contrast to remoteness, that is incredibly complex, and can go down to the minutiae of what happened. There are several different legal theories and tests to determine causation, each as intricate as the other.

Despite that, under UK personal injury law, there two major matters for the patient (as opposed to the lawyer) to be concerned with to determine whether they can make a legal claim against a negligent clinical. Firstly, the patient must have suffered from medical negligence within three years. Admittedly though, some illnesses (such as asbestos or other industrial disease) take along time to develop and show symptoms. As such, for those specific illnesses, the courts set aside (to an extent) that three year requirement; for most of those illnesses the claim must be made within three years of diagnosis instead.

In common with personal injury law, the other requirement is that the medical negligence was not your fault, but rather that of the clinician involved. In by far most cases of medical negligence, that is indeed the case, and as such that requirement is merely a legal formality.

There is a lengthy collection of case law which is in the patient’s favour when it comes to medical negligence. Many legal principles concerning medicine have come about with the patient’s best interests in mind, and safeguard and protect the patient from medical errors.

Although the patient is often suffering after medical negligence – it is very much the right of the patient to seek a legal remedy to their medical wrong. Additionally in most cases involving medical negligence, the injured patient can be awarded compensation. Although that will never replace ill health, or the mental anguish, compensation can go a long way. Many patients are upset, bewildered and angry after medical negligence, and desire an explanation and apology. As such, patients should not be afraid to seek a legal remedy to obtain justice, and to obtain just that apology and explanation.

Continue Reading