By Eoin P. Campbell, LL.B., Solicitor
What is Doctor Negligence?
When a patient suffers an injury as a direct result of the medical treatment or care that he or she has received, this may be due to the negligence of the attending doctor. What clients often misunderstand is that every mistake that a doctor makes does not necessarily mean that he or she has administered ‘negligent’ treatment. Although better care or safety measures could have prevented the patient’s injury, it is often the case that incidents of this nature are unavoidable.
A Specialist Aspect of the Law
Doctor and medical negligence cases are perhaps the most complex genre of personal injury law. Medicine is by its nature a specialist subject and therefore defining what is ‘negligent’ practice is not always easy or straightforward. This fact is recognised by the Irish legal system; unlike other types of personal injury claim, the Injuries Board Ireland refuses jurisdiction with regard to such cases.
Doctor Liability
For any personal injury claim to succeed, the plaintiff must show that his or her injury was the consequence of negligence on the part of someone who owed a duty of care to them at the time of the accident. Clearly, a doctor owes a duty of care to his patient.
Professional Doctor Negligence
The law provides the injured party with the opportunity to recover financial compensation if he or she can demonstrate, ‘on the balance of probabilities’, that the medical treatment received was administered negligently by the Doctor or relevant healthcare professionals and in turn that this negligence caused, in whole or in part, the injury or illness.
Broadly speaking, the circumstances in which it can be argued that a doctor has acted negligently in his or her treatment of a patient fall under one or more of the following categories:
- Mistaken or delayed diagnosis
- The failure to act accordingly following the receipt of test results
- Mistakes in the performance of procedures or operations
- Mistakes in the administration of treatment or medication
- Sub-standard follow up care of the patient
- The failure to advise the patient of the risks involved with procedures before the administration of same
Any court will ask as to whether or not ‘a normal competent physician’ would have taken the same action as the Doctor in question. This means that even when the doctor’s actions indeed caused or contributed in part to the patient’s injuries, his or her treatment might not be judged negligent in a legal sense if the defence can adequately demonstrate that they were ‘reasonable’ actions taken by a competent medical professional given the information that was available to the doctor at the time.
Injury or Damage
While it may seem obvious, it is worth stating that for any personal injury case to succeed, Doctor Negligence or otherwise, the negligent act of the defendant must have in fact caused an injury (physically or psychologically) to the plaintiff. That is to say, even when the Doctor has clearly acted in a negligent fashion, perhaps recklessly so, a patient may only seek financial compensation for injuries that he or she has in fact suffered. The Doctor in question may well face a disciplinary procedure from the relevant medical authority but there are no grounds to seek compensation for an injury that has not been sustained.
How is the ‘value’ of a Doctor Negligence claim assessed?
Liability
Obviously a Doctor cannot be held responsible for injuries if his or her actions did not in fact cause them.
Any given case of Doctor Negligence may include circumstances where the plaintiff’s actions have in fact exacerbated his or her original illness or injury. Such actions may include the failure to co-operate with follow-up treatment offerred. For example, a patient may fail or refuse to take prescribed medication or attend at the hospital or with his or her G.P. when the care offerred may well have cured or alleviated the damage initially sustained.
When compared to the negligence of the defendant Doctor, the extent of contributory negligence on the part of the plaintiff (i.e. to what extent he or she can be deemed responsible for his or her present medical condition) may defeat the case or reduce the compensation awarded.
Trauma suffered
Financial compensation is awarded for the injury that a claimant has in fact sustained. The ‘trauma’ of being the recipient of negligent treatment by a doctor (unless a psychological injury has resulted from same) is of secondary importance to the subject injuries. Lawyers often, of course, will refer to the traumatic circumstances of the subject incident when negotiating a settlement or at trial in order to present the case in a human and sympathetic manner as this may well be beneficial to the plaintiff’s case.
Special Damages – Medical Costs
The costs of any specialist medical care that a victim of doctor negligence has required, or will require as a consequence of same, can normally be included in his or her claim.
Type of injury
Injuries are generally “valued” by lawyers and the courts according to their severity and if they require an expert diagnosis or not to be plausible for example, a ‘whiplash’ type injury compared to a broken bone. The prognosis for recovery, whether it be full or partial, short term or long term, are also crucial factors.
Medical History
The plaintiff’s medical records will normally be referred to in the assessment of his or her personal injury claim. A long standing medical problem which is related to that on which the claim is based may significantly affect a claim. It may well be the case that the Doctor’s negligence did not cause the subject injury or illness but acted so as to aggravate same. In such circumstances the claim will not necessarily fail, but the compensation awarded may be reduced considerably.
Impairment of quality of life
This relates to a loss of ability to perform hobbies, pastimes or passions as a direct result of the injuries sustained. This can cause a great deal of anguish for a victim of Doctor Negligence and a settlement or award in respect of the injuries will take this impairment into account.
Intensity and Duration of the pain suffered by the Plaintiff
The basis of any personal injury claim, Doctor Negligence claims included, is to compensate the claimant for his or her injury and consequential suffering. The greater the pain that the plaintiff has suffered and persistence of same, therefore, the higher the compensation awarded is likely to be.
Loss of earnings
Clients often misunderstand that this is in fact a separate issue to the doctor negligence personal injury claim and this misunderstanding is a source of frustration for their legal team. Plaintiffs often draw comparison between their own case to that of a contemporary who received “twice as much as me!” for an injury that is almost identical to their own. This discrepancy can often be explained by the fact that the other party received a higher settlement figure with respect to the ‘loss of earnings’ aspect of their claim. This aspect of the claim corresponds to the person’s salary at the time that the injury was sustained or to his or her potential salary. When it comes to the calculation of the plaintiff’s loss of earnings, the severity of the injury itself is therefore only relevant in that it has limited that person’s ability to work.
Summary
- Doctor negligence occurs when a medical practitioner has failed in his duty of care towards you.
- Claiming for doctor negligence is a special aspect of the law and not dealt with by the Injuries Board Ireland.
- Claims for doctor negligence are determined in court and are based on the opinions of medical experts.
- A solicitor has to show that on “the balance of probabilities”, doctor negligence occurred due to the treatment administered displaying a lack of care.
- The value of a doctor negligence claim will vary a great deal according to your own personal circumstances.
- There are many areas of medicine in which doctor negligence can occur, and you should speak with our solicitor on our free advice service to find out more.
It is important to note that each case is unique. If you feel that you have recently suffered injury or developed illness due to doctor Negligence 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 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.