Medicine is an art and a science. In addition, the practice of medicine is not static. Consequently, standards, practices and procedures can and do change. At any point in time there may be more than one acceptable way of practicing medicine. However, patients have a legal right to assume that the care and services given to them by medical professionals or health institutions reach a certain minimum standard and when this does not happen the patient may have the basis of a medical negligence case.
Medical professionals are not insurers. They do not guarantee a cure for the ill health or medical problems of the patient. Nevertheless, they are held to certain standards of care. If a health professional causes injury or loss through error and that error is not one an average member of the profession would make, the professional will be liable to the patient for the loss.
It requires the work of a lawyer and a medical expert to make the judgment that the medical professional has been negligent. (It is legal malpractice to commence proceedings for a Plaintiff against a hospital or a doctor without “appropriate expert advice to support it.”)
It is generally unwise for a lay person to make a judgment about the existence or otherwise of legal liability, but this is doubly the case in relation to medical negligence. A lawyer experienced in medical negligence actions is necessary to successfully prove instances of medical negligence. Medical negligence cases are generally complex and generally speaking only the lawyer will have the ability to carry out an investigation; to gather evidence that medical negligence occurred.
The onus on the patient however is to act urgently to seek advice in relation to a possible medical negligence action. Under the Statute of Limitations the penalty for waiting too long to take legal action may appear in the form of a defence that the action is statute barred and should be struck out. In such an event the costs will fall to be met by the patient/plaintiff.
Examples of work undertaken include
- Tracheotomy tube dislodgement
- Brain damage
- Death in intensive care
- Birth defects
- Cerebral Palsy
- Medical institution system failure
Solicitors’ skills in medical negligence
- Taking the patients history: investigating the hospital file
- Locating and using expert witnesses
- Locating experienced counsel
- Case management
- Compiling details of loss
The current legal standard of care imposed upon doctors, hospitals nurses and other medical professionals is one where the medical practitioner must not fall below the ordinary skill of an ordinary practitioner exercising and professing to have the particular skill in issue. The relevant standard and the level of skill is that practiced and accepted by a responsible body of medical persons skilled in the particular area of medicine in question.
Generally speaking it is the medical profession that, in effect, determines the standard of care among medical practitioners (with a small measure of discretion retained by the courts). In some cases the court may decide that a generally accepted practice among medical practitioners is a negligent one, however general in the profession.
In all litigation the burden of proof of causation lies on the Plaintiff. The Plaintiff must prove that the Plaintiff’s damage or loss was caused by the Defendant’s negligence. In other words, it is not sufficient to prove negligence; it is necessary to connect that negligence with the damage.