By Eoin P. Campbell, LL.B., Solicitor
What is Medical Malpractice?
If you have suffered a loss, an injury or the preventable deterioration of an existing condition as a direct result of negligent medical treatment or care that you have received, this may be referred to as ‘medical malpractice’. What clients must realise is that an injury caused by medical treatment does not necessarily mean that the treatment was ‘negligent’.
Whilst better quality of care or safety measures could have prevented your injury, it may be that the incident itself was in fact completely unavoidable. Medical malpractice claims are perhaps more complex than any other genre of personal injury law, a fact that is recognised by the Irish legal system. Unlike almost every other kind of personal injury compensation case, the Injuries Board Ireland will refuse jurisdiction in respect of medical malpractice compensation claims.
What causes Medical Malpractice?
Medical professionals, like any other person, can make errors of judgement or neglect to carry out their duties to the required standard. Thankfully, this is not usually the case and the vast majority of medical practitioners perform their daily tasks to the highest possible standard in our hospitals and clinics. When they occur, however, incidents of medical malpractice are often due to the pressure of working long hours in what is very clearly a stressful environment.
Other errors may be due to the inexperience of a young doctor or perhaps a more senior doctor or surgeon’s lack of familiarity with a new procedure or practice. A language barrier between doctor and patient causes an obvious risk. There are also instances when errors have been made due to administrative problems such as improper documentation or missing medical records. Indeed, the list of possible causes of medical malpractice is almost endless and any one factor, or combination of factors, may result in a doctor maltreating his or her patient.
Injury or Damage
A personal injury claim, be it due to medical malpractice or otherwise is just that; an injury claim. The plaintiff cannot make a successful claim unless he or she has sustained some form of injury either physical or psychological as a consequence of the medical malpractice that occurred.
Even in circumstances where the medical staff have indeed acted negligently, perhaps criminally so, it should be noted that with regard to the civil law a plaintiff can only claim compensation for a personal injury that he or she has in fact sustained. In certain circumstances, a near miss or ‘scare’ can be proved to have caused a severe psychological trauma that justifies compensation being awarded.
Liability
In medical malpractice, like any personal injury claim, the injury sustained must result from the negligence of someone who had a duty of care towards you at the time of and in the circumstances of the accident. It is quite apparent that Doctors owe a duty of care to their patients. It is, however, often difficult to prove negligence on the part of the doctor or hospital when an injury has occurred, an illness contracted, or a misdiagnosis has been made.
Does a Doctor’s mistake always constitute Medical Malpractice?
What is important to remember and is often misunderstood by clients is that a mistake does not necessarily mean that the treatment was ‘negligent’. While better quality of care or safety measures could have prevented your injury, it may be that the incident itself was unavoidable.
Professional Negligence and Medical Malpractice
To prove that a healthcare professional has acted negligently in his or her treatment of a patient is a rather complex task, and it should be noted that the law offers only the opportunity for a victim to recover medical malpractice compensation if it can be demonstrated ‘on the balance of probabilities’ that the treatment received was carried out in a negligent fashion by the healthcare professionals involved and that this directly caused or contributed to the injury.
What exactly constitutes medical negligence is not always clear. However, there are a number of circumstances in which it can clearly be argued that a medical professional has breached his or her duty of care. These include;
- Erroneously or belatedly diagnosing illness or injury
- Failure to take action following test results
- Mistake in performance of an operation or procedure
- Error in administration of medication
- Sub-standard follow up care
- Failure to advise a patient of the risks associated with procedures prior to their administration.
It is essential to realise that in deciding if the care administered to the patient was negligent a court will demand not whether the doctor’s actions caused the injury in question, but whether or not a normal competent physician would have acted in a manner identical to that of the defendant doctor. Therefore even where the treatment administered has caused or contributed to the plaintiff’s injury, same may not be deemed negligent if it can be demonstrated that it was the ‘reasonable’ action of a competent medical professional given the circumstances.
Do I sue my own Doctor directly for Medical Malpractice?
The vast majority of the public will recognise that even when a physician has acted negligently, he or she is for the most part an honest professional who normally does excellent and essential work in a difficult and stressful environment. This will often make clients reluctant to pursue a medical malpractice case. The answer to the said question, however, is generally speaking no. The case is taken against the health authority or hospital involved. The doctor is not sued personally.
What is “the date of knowledge” for a Medical Malpractice claim?
Normally the date of knowledge will be the date on which the injury was sustained. It is therefore essential that an injured party contacts a solicitor as soon as possible following an incident of medical malpractice. The reality is that, except for a small number of specific exceptions, the opportunity to make medical malpractice compensation claims will be lost exactly two years after the date of knowledge that an injury has occurred.
Exceptions do, however, exist particularly with respect to cases of medical malpractice such as an illness that went unchecked due to a misdiagnosis of the symptoms presented. In cases such as these, the date of knowledge becomes the date on which you learned that a misdiagnosis had been made. In such circumstances, you should always contact a solicitor at the first opportunity, even if it initially seems that it is too late, as an exception may apply.
Injuries to Infants and Minors
In the case of medical malpractice involving a child, it is important to note that the date of knowledge of the injury is legally the victim’s eighteenth birthday i.e. the Statute of Limitations does not begin to run against the injured party until he or she reaches majority (eighteen years of age). Thereafter, under current law, the injured party has a period of two years within which to issue proceedings in court. A child victim can however pursue medical malpractice compensation claims before his or her eighteenth birthday provided a parent or guardian acts as his or her ‘next friend’.
What if Medical Malpractice is not the Only Cause of my Injuries?
It is of course possible that medical malpractice could occur after the injured party has been in fact hurt in an accident caused by the negligent actions of another party (e.g. an accident at work or a road traffic accident), giving rise to circumstances where the medical malpractice has not caused the injury itself but has indeed lead to its exacerbation. In such circumstances a principle of attributing a ‘percentage’ of the blame to the two or more parties who may be at fault for the plaintiff’s injuries will apply. The liability may therefore be shared between the multiple defendants on a percentage basis.
Summary
- Medical negligence or medical malpractice occurs when you have suffered an injury at the hands of a medical practitioner which could have been avoided with greater care and attention.
- A doctor´s error does not always constitute medical malpractice. There could a number of reasons why a certain action was performed – or not.
- It is difficult to prove medical malpractice where a number of medical practitioners have been involved in your treatment or where you have contracted a hospital acquired infection.
- Medical malpractice claims are most frequently made against the hospital or health authority for which the medical practitioner works.
- You have two years from the date of knowledge of medical malpractice in which to make a claim. This may be when the malpractice took place or when it was realised that it had occurred.
- If you believe you have been the victim of medical malpractice, speak with a solicitor immediately to receive practical and helpful advice about claiming medical malpractice compensation.
It is important to note that each medical malpractice case is unique. If you feel that you have recently suffered injury or developed illness due to medical malpractice and believe that you have a potential personal injury claim, you are advised to discuss all of the points raised in the preceding article with a solicitor at the earliest opportunity.
Copyright © 2009-2019 Eoin Campbell
About the Author
Eoin P. Campbell is an honours law graduate (LL.B) and qualified solicitor whose primary professional experience is in the area of litigation and in particular personal injury claims. Eoin P. Campbell is currently lecturing in law at two universities in Lyon, France.