Medications and Medical Negligence

By Tom Maling

This article is written with ACT and Southern NSW residents in mind, as we routinely act for people from these areas.  However it will be useful for anyone researching medical negligence, medication errors and medication side effects.

Summary:

  1. A doctor owes their patient a duty of care when giving advice about medications and when prescribing them.
  2. A doctor must review how you respond to a medication and monitor you for side effects.
  3. A doctor must warn about risks of harm which a reasonable patient would find significant, or risks which because of your individual circumstances a reasonable doctor would think that you would find significant. Why? So you can decide whether the treatment is for you.
  4. Medical negligence claims can be because of a failure to warn about a risk which then occurs, or because a medication was incorrectly prescribed.

Doctor’s duty

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, including prescribing and giving advice about medications.  Injuries caused by a known side effect of a medication which was not warned about may be negligence. This is because you cannot properly decide to have treatment, accepting its risks, if you don’t know about them.  It may also be negligence where a doctor prescribes a medication when they should not have.

Medical negligence claims involving medications are different to claims involving single treatments such as surgery.  A surgical procedure is a one off event involving separate components such as pre-surgery advice, warnings and tests, and then performance of the surgery.  Medications are different.

Medication treatment is often ongoing and over a long period of time. Imagine you are prescribed a medication by a doctor over many years.  The doctor may have given you some advice about the medication when they first prescribed it.  Then each time you go back for a new prescription, there may be no further discussion with you about the medication and the risks of treatment.

A doctor’s duty of care requires them to review the treatment and monitor your response for signs of side effects.  It is not good enough to warn you at the start, and then fail to monitor your reaction to the medication or progress on the treatment.

Duty to warn of risks

A doctor’s duty to warn about risks extends to risks (side effects) which a reasonable person in the circumstances would think was significant.  This accounts for the severity of a risk, how often it might occur, and a patient’s particular circumstances.

Take for example the drug sodium valproate (Epilim).  It is known to carry a risk of birth defects if taken by women who are pregnant.  A doctor should warn a woman trying to get pregnant, or who is pregnant and taking the drug, of this risk.  It is a serious risk.  However, a doctor treating a female patient who chooses not to have children or is unable to have children, need not be warned of the risk, as that patient would attach no significance to it.

This example shows why your individual circumstances are important.

Failure to warn cases

These are cases where it is argued that a doctor failed to warn about a risk of taking a medication, and the risk then occurred and caused injury to the patient.  You must show:

  1. There was a risk of injury from the medication that if known about, a reasonable person would attach significance to it when deciding whether or not to have that treatment.
  2. The doctor didn’t tell you about the risk.
  3. The risk actually happened.
  4. The risk caused you injury.

Even if you show the doctor was negligent by failing to warn about the risk, you will not succeed if it’s more likely than not you still would have had the medication if told about the risk.

Medication side effects

All medications have side effects.  Some occur more frequently than others, and some are more serious than others.  Some side effects may occur immediately, some may take a long time.  For example, proton pump inhibitor drugs such as Nexium are widely prescribed to treat indigestion.  In July 2017, a US study found that long-term use may cause premature death, kidney disease and other serious side effects.  The risk of injury from these side-effects does not arise immediately, but rather after long-term use.

Advice:

Talk to your doctor.  They are the experts.

Here are a few tips we have gleaned from our experience working with clients who are injured from medications:

  1. Ask your doctor about the risks.
  2. If you’re not happy with your doctor’s answer, get a second opinion.
  3. If things start to go wrong, in addition to seeking treatment, keep a record of what happens to you.

Choose a health lawyer to work with you

We are experienced Canberra medical negligence lawyers, who also act for clients from areas such as Batemans Bay, Bega, Cooma, Goulburn, Merimbula and Yass.  We are passionate about health law issues.  We keep up-to-date with the latest developments in medication safety, understand the health system and importantly, we understand our client’s needs.

Please contact Matt Bridger and Tom Maling if you wish to discuss your circumstances and how we can help.

Further reading:

To contact Matt or Tom or to make an appointment in either our Canberra or Queanbeyan office:

p: +61 2 6206 1300 | e: Info@elringtons.com.au