The issue in a medical negligence action is whether the defendant deviated from approved or appropriate practice. It is an error, usually, to think that the plaintiff will succeed if he/she proves that there would have been no injury had the defendant followed a different course of action. (The exceptional case where it would not be an error would be one where the court was persuaded that the conventional practice carried such obvious defects that it was indefensible and where the court effectively condemns the defendant and the practice.)
Litigation lawyers fight. If a lawyer is not generally fighting, he/she is not in litigation. Sometimes the lawyer is fighting for a plaintiff and sometimes the lawyer is fighting for the defendant.
The Hospital argued that the pleadings in the action alleged a defect with, or in, a forceps used in the Hospital. It argued that a claim that a forceps was defective was not a medical negligence claim (“…the correctness or otherwise of the surgical procedure being carried out”), but was a defective product claim.
The logic in the title to this post is lurking in every action alleging negligence, but it is a formidable retort in a medical negligence action.
A plaintiff must prove the liability of the defendant. This is not equivalent to proving causation. Liability may arise where proof of an error in judgment or management is established, but the plaintiff must go in to prove that that error was the cause, or a cause, of the untoward outcome for the patient.
The extent of injury inflicted on hospital patients by clinical negligence is a case in point. We do not know what it is. When it happens the consequences are real. Somebody somewhere pays for the injury. Clearly, the victim suffers the injury and pays in that fashion. The family of the victim may pay in care deployed or care costs paid. Or, if the family consists of children of the victim, the children may suffer diminished life opportunities by being deprived of care they would have got from the victim.
She suffers from cerebral palsy after the alleged mismanagement of her birth.
In a medical negligence action, in order to fix the Defendant with responsibility, the Plaintiff may have to prove that his illness (his medical condition) was not the cause of his injuries.
Time only runs against a plaintiff who knows he/she has been injured (or could reasonably ascertain he/she has been injured) AND knows who or what has injured him/her (or could reasonably ascertain who or what has injured him/her).