What is Medical 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.

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 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.

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:

1. Have I got what I expected from the treatment?
2. What did my doctor tell me to expect or would happen?
3. Has the treatment caused me further injury?
4. 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.

A hospital and its staff may be negligent when they fail to implement strategies aimed at reducing a risk of harm to a patient. This may include:

1. Not performing surgery competently;
2. Administering the wrong medication or the incorrect dose;
3. Birthing complications not adequately managed; or
4. Failing to escalate care when a patient’s condition is deteriorating.

For more information on hospital negligence see our article Hospital Complications 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.

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 the correct medication.
• 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 then occurs or because a medication was incorrectly prescribed.

For more information see our article Medications and Medical Negligence.

Nursing homes do have a duty of care which if breached, could give rise to a claim in negligence. However there are other options apart from a negligence claim which people can investigate. For more information see our What Duty of Care Does a Nursing Home Have? Page or our Chemical Restraints in Nursing Homes page.

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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.