By Tom Maling
A doctor owes their patient a ‘duty of care’, and breach of that duty which causes an injury will entitle a person to compensation. But what does that all mean?
If you are reading this article, chances are you or a loved one has had medical treatment which has not gone to plan. We understand the enormous impact this can have, not just in terms of your health, but also your work, relationships and general enjoyment of life. We hope that you are able to recover from your injuries. We also hope that this article provides you with a greater understand about what medical negligence actually is, and how we could help.
The key points are:
- There may have been negligence when the doctor does something that a reasonable doctor would not do, including failing to do something.
- A doctor owes you a duty of care to act reasonably when providing treatment and advice.
- It is not enough to only show that the doctor acted negligently. You must show that the doctor caused you further injury (causation).
- If you establish negligence and causation, then you will be entitled to compensation for things like lost wages, the cost of treatment, and your pain and suffering
What is negligence?
Negligence is more than making a mistake. Let’s face it, we all make mistakes, including doctors. Medical treatment does not always go according to plan. Sometimes one of the risks involved in the treatment ‘just happens’. It’s not the doctor’s fault. It’s just a risk of the treatment that you should have been warned about beforehand. Other times what happens is actually caused by something a doctor did or did not do.
There may have been negligence when the doctor does something that a reasonable doctor would not do. For example:
- A doctor prescribes a medication when the medication guidelines say it shouldn’t be prescribed.
- A doctor continues surgery despite complications and causes spinal cord damage.
- A dentist attempts a tooth extraction but breaks a tooth and pushes it up inside the patient’s sinus.
There may also have been negligence when the doctor did not do something which a reasonable doctor would have done. For example:
- A doctor fails to warn a person about the risks of taking a medication or having surgery, and then the risk actually occurs.
- A doctor fails to diagnose an injury or illness.
- A doctor fails to refer a patient to a specialist for treatment.
The key point is that it’s something that a doctor did or did not do, that another reasonable doctor would or would not do. While a mistake by a doctor may amount to negligence, not all mistakes made by a doctor will be negligence.
What is a doctor supposed to do?
A doctor owes their patient what’s called a ‘duty of care’. The duty of care is to act reasonably, and covers providing treatment and advice. So when a doctor examines you, gives you a diagnosis and provides you with treatment, they are supposed to do it to a reasonable standard. The standard applied is a comparable doctor. A GP is not expected to provide the same level of treatment on heart conditions as a Cardiologist would.
Any advice given by the doctor must cover the risks of the treatment, what it involves and your treatment options. This is essential to your decision whether or not to agree to treatment. This is called consent (for an explanation of consent, see our article called ‘Consenting to Health and Medical Treatment’ . Again, there is a reasonable standard test. The doctor must advise you in a way that other reasonable doctors would.
Was my treatment negligent?
You should first consider whether you were told by the doctor that the problem might happen if you have the treatment. If so, by consenting to the treatment knowing that the risk might happen, you have accepted the risk. There’s no negligence. But you should also ask yourself whether the risk you were warned about is actually what happened.
If you were not aware of the risk of the injury, and something has happened to you, it may be worth investigating a medical negligence claim.
To help you consider whether you have received negligent treatment, here’s a few things to ask yourself:
- Have I got what I expected from the treatment?
- What did my doctor tell me to expect or would happen?
- Has the treatment caused me further injury?
- What has the doctor done afterwards?
These are the sorts of questions a lawyer will ask you.
Point 3 above is really important. In medical negligence claims you must show that the doctor caused you further injury. This is called causation. You will not be successful in a claim if you only show that the doctor was negligent, but did not actually cause you any further injury.
What can I do?
More often than not, when there’s been medical negligence you will have costs in getting further treatment to try and recover. You might have time off work. Family and friends might have to help you at home. If you now have a long-term injury you will likely have ongoing medical costs. You may not be able to work for as long as you hoped. This all adds up. Compensation claims seek to cover these types of costs.
Many people are very fond of their doctor, especially when they have been seeing the doctor for a long time. Medical negligence does not mean the doctor is a bad person. However, you do not want to be the one left holding the ball.
Medical negligence claims are particularly complex and emotional. Let’s face it, nobody wants to be in the situation where they have to consider pursuing a claim. Most firms specialising in medical negligence will not charge you for an initial consultation – we don’t. So there’s no cost to you in coming in and having a chat.
Who you will talk to at elringtons?
Matt Bridger and Tom Maling represent clients in medical negligence claims. As Canberra medical services cater for surrounding regions, we also act for NSW residents from Queanbeyan, Batemans Bay, Goulburn, Yass, Cooma, Bega and Merimbula areas, in both ACT and NSW claims.
Matt has over 25 years of experience representing people in medical negligence matters, including small claims right up to multimillion dollar catastrophic injury claims. He has great medical knowledge across a whole range of areas and has conducted cases in general surgical, birth and obstetrics, dental, orthopaedics, pharmacological and cardiology negligence. Tom trained as a Registered Nurse and has experience in hospitals and nursing homes. He works with Matt on all medical negligence matters, and uses his inside knowledge to the advantage of clients. Our experience means we have insight into health issues, health service delivery, and most importantly our client’s experiences
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To contact Matt or Tom or to make an appointment in either our Canberra or Queanbeyan office: