Medications and Medical Negligence

Health Law, Litigation & Dispute Resolution

For anyone considering whether they have a medical negligence claim as a result of a medication error, here are some key points:

A doctor owes their patient a duty of care when giving advice about medications and when prescribing them.
A doctor must review how you respond to a medication and monitor you for side effects.
A doctor must warn about side effects 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.
Medical negligence claims can be about a failure to warn about a side effect which or because a medication was incorrectly prescribed.

Doctor’s duty of care

A doctor owes their patient what’s called a ‘duty of care’. The duty of care is to act reasonably and covers prescribing medication, giving advice about medications and monitoring the effect of medications.

For more information on duty of care please see our article ‘What is medical negligence?’

Medications and medical negligence

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.

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

Duty to warn about side effects

A doctor’s duty to warn about side effects extends to a side effect which a reasonable person in the circumstances would think was significant. This accounts for the severity of a side effect, 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 Epilim, 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.

A person’s particular circumstances may require a doctor to warn about a side effect which they ordinarily would not be required to warn about. For example, a patient who only has vision in 1 eye would likely place more importance on a slight risk of harm to their vision than someone who has no sight impairment. Another example is where a person asks particular questions of their doctor about risks of harm and side effects.

Incorrectly prescribed medications

Cases may arise where a person is prescribed a medication which they ought not to take. This may be because of the person’s condition or because of other medications they are taking. Doctor’s are required to be aware of interactions that medications have with one another and ensure you are not prescribed a medication which cancels the effect of another or increases a risk of injury posed by a medication.

Compensation

We can’t restore your good health and wellbeing (we wish we could), but we can get you compensation to make up for your losses, and enable you to pay for your future treatment.

The types of compensation that may be awarded are:

Previous lost wages for your time off work;
If your injuries will affect your ability to work in the future, then your future lost wages;
The cost of treatment, medications, disability aids and pain relief in the past and future;
Care and assistance provided to you by family and friends;
Pain and suffering; and
Loss of enjoyment of life.

Elrington’s health law

Matt Bridger and Tom Maling represent clients in medical negligence claims. We act for Canberra and the surrounding regions including NSW residents from Queanbeyan, Batemans Bay, Goulburn, Yass, Cooma, Bega and Merimbula areas, in both ACT and NSW claims.

Matt is an Accredited Specialist in Personal Injury Law and 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 completed training as a Registered Nurse and has experience in hospitals and nursing homes. He also represents our clients on all medical negligence and treatment dispute claims. Our experience means we have insight into health issues, health service delivery, and most importantly our client’s experiences.

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

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