By Eoin P. Campbell, LL.B., Solicitor
What is ‘Hospital Negligence’?
If you have suffered an avoidable loss, injury or the deterioration of an existing condition as a direct result of hospital or medical treatment or care that you have received, this may be referred to variously as a ‘hospital negligence’ , ‘medical negligence’ a ‘medical accident’, an ‘adverse incident’, or a ‘patient safety incident’. Hospital negligence occurs when a patient is injured as a consequence of the negligence of a doctor or other medical professional.
Causes of Hospital Negligence
Like in any profession or job, doctors and other medical professionals can make errors of judgement or neglect to carry out their duties to the required standard. Usually this is not the case, and the vast majority of medical practitioners do excellent work every day in our hospitals and clinics. When they do occur, however, incidents of hospital negligence and medical errors are often due to the pressure (and fatigue) of working long hours in what is undoubtedly a stressful environment.
Other errors may be due to the lack of experience of a young doctor or perhaps even a senior doctor or surgeons lack of familiarity with a new procedure or practice. On occasions errors are made due to administrative problems such as improper documentation, missing medical records or even bad handwriting. Lack of communication, particularly if a language barrier exists between doctor and patient causes an obvious risks. Indeed the list of possible causes is almost endless and any one factor, or combination of factors, may result in a doctor acting negligently in the treatment of his or her patient.
Incomplete Patient Disclosure
It is also worth remembering that even if the doctor and/or medical team carried out the relevant procedures to the correct standard, the treatment of the patient may well have been ‘negligent’ in that he or she did not receive full disclosure of the risks and consequences of the procedure in question, or were not advised at the earliest possible moment that an error had indeed been made.
Do I sue my own Doctor directly for Medical or Hospital Negligence?
Most of us will recognise that even when a doctor has acted negligently, he or she is for the most part an honest professional who generally does excellent and much needed work in one of the worthiest professions. This will often make clients reluctant to pursue a medical negligence case. The short answer to the above question, however, is generally speaking no. The case is taken against the relevant hospital or health authority. The doctor is not sued personally.
Does a Doctor’s mistake always constitute Hospital Negligence?
What is important to remember and is often misunderstood by clients is that this 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. Hospital and medical negligence cases are perhaps more complex that any other genre of personal injury law, a fact that is recognised by the Irish legal system; unlike almost every other type of personal injury compensation case, the Personal Injuries Assessment Board will refuse jurisdiction in respect of hospital negligence compensation claims.
Medication Error
As one would expect an error in the administering of medication (be it the wrong medicine or an incorrect dosage) or the correct medicine but in the wrong dosage amount can often have disastrous consequences for the patient.
An error such as this is of course unintentional, however, that the healthcare professional has acted negligently is in no doubt. Medication errors may be due to something as simple as one bottle of medicine being mistaken for another or a doctor or nurse misreading the hand writing of a colleague. The consequences of such an error can vary immensely depending on the drugs involved, the patient’s condition at the time of the error, any allergies that he or she may have and countless other factors.
Surgical Errors
Surgical errors may constitute any errors or mistakes that are made by the medical team in theatre. The potential consequences of surgical errors can vary greatly but give the nature of surgery the risks are grave and such an error may even prove fatal.
Common kinds of surgical negligence would include insufficient sanitation or the use of surgical tools and apparatus which is unclean. Some claims will relate to operations that have been performed on the wrong body areas, including the removal of the wrong organs or even the amputation of the incorrect limbs. On occasion surgical instruments have been mistakenly left inside the body due to the negligent actions of the surgeon or another member of the hospital staff. Post-operative errors may also be considered as surgical malpractice.
MRSA Claims
The bacteria, MRSA, or Methycillin Resistant Staphylococcus Aureus, can cause a number of infections if it enters the human body. The MRSA bacteria is, for healthy individuals, rather harmless. For sick people, or patients who have a deep wound, however, there is a much greater risk of developing an infection.
MRSA can be spread through skin contact, via bedsheets and towels or through contact with any form of equipment. It is essential therefore that hygiene and cleanliness standards are a priority in any clinic or hospital. Many MRSA cases are a direct result of the failure to maintain standards of hygiene and cleanliness in hospitals. The failure to keep a hospital ward suitably clean, for example, may constitute negligence on the part of the local health authority. If a patient develops an MRSA type infection in such circumstances he or she may therefore be entitled to hospital negligence compensation.
Anesthesia Errors
Injuries suffered from anesthesia (whether they are due to a misdosage or an inappropriate type of anesthetic used) can vary from patient to patient. Important factors will include a person’s age, sex, general health, and their own body’s general reaction to the drugs used. Injuries resulting from anesthetic error can include, toxic shock as a consequence of bloodstream absorption, heart problems, nerve damage , infection, and / or lung problems.
Another ‘injury’ that a patient may suffer as a result of anaesthetic error is to experience “Anaesthetic Awareness” i.e. the patient remains (erroneously) conscious throughout the procedure and, more importantly can feel pain but is unable to alert the doctors. Patients have been known to suffer from psychiatric disorders following such experiences.
Delayed Diagnosis or Missed Diagnosis
It is quite apparent that the earlier an illness is correctly diagnosed and treated, the better the patient’s prospects for a full or partial recovery. If the illness goes untreated it may, and in some cases certainly will, lead to more serious health problems or even premature death. Delayed or missed diagnosis can happen for a variety of reasons; human error, failure to order the correct tests, errors in the carrying out of tests or the misinterpretation of results are but a few explanations of why misdiagnosis occurs. The hospital has a duty of care to its patients and may be liable for compensation should the patient suffer further illness or injury as the result of misdiagnosis on the part of a negligent doctor.
What Diagnoses are Missed and Why?
A misdiagnosis can potentially have catastrophic results for the patient. A misdiagnosis can occur for any number of reasons, not all of which can be attributed to the fault or negligence of the doctor. The doctor has, however, a duty of care to the patient and is expected to follow standard practices and procedure. An illness may be misdiagnosed or missed altogether should a proper diagnostic test not be performed. On occasions test results are not adequately followed up, or perhaps the relevant healthcare professional neglects to obtain satisfactory background information from the patient or a physical examination is not performed in an adequate manner. Doctors may also misinterpret results of tests that have in fact been properly performed.
It is important to remember that a patient who is improperly diagnosed or misdiagnosed with even the most serious of illnesses, for example cancer, does not have an automatic right to hospital negligence compensation. The plaintiff’s lawyer must establish that on the balance of probabilities the effect of the cancer misdiagnosis resulted in a different medical consequence than would have otherwise happened. That is to say if the illness was, for example, more than likely to have been of a terminal nature if even diagnosed at the earliest possible opportunity, it may not be possible to argue that the plaintiff suffered any injury as the result of the initial misdiagnosis and the claim for hospital negligence will fail.
Failure to Treat
The failure to properly (or in any way) treat an illness or disease is often the consequence of a delayed or misdiagnosis. In some circumstances this will have an adverse affect on the chance of the patient making a full or partial recovery from the relevant illness. It is important to note however that the patient must be able to show that their condition worsened as a direct result of the doctor’s failure to treat. If for example the illness or disease involved is of a terminal nature in all circumstances, the initial misdiagnosis and failure to treat may not have influenced in any way the patient’s condition. In such circumstances hospital negligence compensation may not be available.
Failure To Monitor The Patient
The failure to monitor a patient in hospital can lead to significant complications if the patient’s condition deteriorates so that urgent medical treatment is required, but not administered due to the doctor’s unawareness of the change. Regular check-ups and monitoring of patients is considered to be a standard part of hospital care and, if the medical team fails in this duty, it may be considered negligent medical care. The regularity of check-ups and intensity of monitoring will of course depend on the illness involved and on the patient’s general condition, however medical standards in relation to the circumstances must be upheld and any failure to do so may constitute negligence on the part of the medical team.
Obstetric and Gynecological
During pregnancy a mother may be affected by a number of conditions such as renal disease, cardiac disease, gestational diabetes, hypertension, or blood clotting. Such conditions require ongoing care and monitoring and, one one expect, can complicate a pregnancy. These complications can have adverse consequences for both mother and baby. It is essential therefore that they are accurately and promptly identified and managed. Any failure to do so on the part of the medical team may constitute a breach of their duty of care towards the patient.
Birth Injury
It is important to remember that most birth injuries do not result from medical malpractice or ‘error’ of any kind. Medical complications can, unfortunately, affect any pregnancy. The vast majority of doctors, midwives and assisting hospital staff are diligent and professional. More often than not, procedures are followed to the highest possible standard, and hospital negligence is not to blame for every birth injury or defect.
If, however, your child has suffered a birth injury that you feel was a direct result of hospital negligence, you should consult a solicitor as soon as possible. If it can be proved that prove that your healthcare team acted negligently and that their conduct was a direct cause of injury you may have a strong claim for hospital negligence compensation.
Neonatal
Neonatal medical conditions occur after a baby’s birth. The failure to promptly diagnose and treat such conditions can have extremely negative consequences for the child’s short-term and long-term health. The late or misdiagnosis and subsequent failure to adequately treat neonatal conditions may be due to hospital negligence on the part of the relevant healthcare professionals.
Orthodontic Errors
Similar to any other form of medical malpractice, an orthodontist may be deemed to have been negligent in their treatment of a patient should they make an error in administering the treatment or fail to take appropriate action in treating a patient.
The failure of an orthodontist to properly monitor patients with braces or incorrectly apply braces, for example, may result in patients to suffer from pain and discomfort, periodontal disease, and the incorrect positioning of their teeth. If it can be proved on balance that any of the said ‘injuries’ were a direct consequence of the orthodontist’s negligence, the patient may be entitled to compensation.
Cosmetic / Plastic Surgery
As with any other type of surgery you must be informed of any possible risks before you undergo plastic surgery. Like any doctor, cosmetic surgeons and their surgical team have a duty of care towards their patient. Errors made in the practice of plastic surgery can cause emotional distress and scarring or disfigurement which make necessitate further surgical procedures to correct the errors made. If it can be proved that these mistakes were due to the negligence of the plastic surgeon, the patient may have a strong claim for hospital negligence compensation.
Fatal Accidents
When a death has occurred as a direct result of medical negligence the victim’s next of kin may be entitled to compensation. Money can never of course compensate for the loss of a loved one however it is important that the victims family are aware of their rights in such circumstances.
When a death has been caused by suspected hospital negligence, the Coroners Court may feel in appropriate to hold an inquest. An Inquest at the Coroners Court does not in itself establish any kind of liability for the persons death and has no power to award compensation to the victim’s next of kin. Its findings may well strengthen any claim for hospital negligence that may be brought in a civil court by the victim’s moved ones, but it is not the forum for dealing with issues such as compensation. It is therefore important in circumstances where you feel medical negligence may have contributed to, or was the sole cause of, a loved ones death, to consult with a solicitor as soon as possible.
Other ‘Hospital’ Accidents
It is important to note that not all injuries sustained in a hospital premises will be defined as hospital negligence or medical negligence. Like anywhere else trips or falls may occur in a hospital or clinic. If a visitor to the hospital, staff member or indeed a patient should suffer such an injury in hospital due to the negligence of another this will not be defined as medical or hospital negligence.
That is not to say that the injured party does not have a case against the Hospital or health authority, only that the case is not one that concerns medical negligence as same must relate to the medical treatment of a patient by a healthcare professional. That the trip, fall or otherwise occurred on hospital premises does not make it a case of ‘medical’ or ‘hospital’ negligence. Your solicitor, on reflection of the facts, may well feel there are grounds to pursue an ‘ordinary’ personal injury case on your behalf.
Liability
With respect to 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 a Doctor (and in the wider sense the hospital) does indeed owe a duty of care to his patient. It is important to note, however, that it in contrast to other personal injury cases e.g. tripping or slipping cases on public footpaths, it is often difficult to prove negligence on the part of the doctor or hospital when an injury has occurred , an illness contracted or a misdiagnosis been made.
Negligence Claims
Proving that a Doctor or other 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 only provides the opportunity for you to recover compensation if it can be shown ‘on the balance of probability’ that the treatment that you received was carried out in a negligent fashion by the healthcare professionals involved and that this directly caused or contributed to your injury.
While it is rather difficult to explain what exactly constitutes medical negligence 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;
- Error or delay in diagnosis of illness or injury
- Failure to act on test results
- Error in performance of a procedure or operation
- Error in administrating treatment or administrating drugs
- Inadequate follow up care
- Failure to fully communicate the risks associated with procedures to patient prior to the administration of same
It is important to remember that a court will ask as to whether a normal competent physician would have acted in the same manner as the defendant doctor. Therefore even where the doctor’s actions have caused or contributed to the plaintiff’s personal injury his actions may not be deemed negligent if it can be shown that they were the ‘reasonable’ actions of a medical professional given the information the doctor had and the relevant circumstances.
Injury or Damage
The first thing that is to be remembered when pursuing any personal injury claim, be it due to hospital negligence or otherwise, is that it is in fact just that ; a personal injury claim. The plaintiff must have sustained some form of injury either either physical or psychological as a consequence of the medical negligence that occurred. Even where the doctor or hospital staff have indeed acted negligently, even criminally so, one should note that with regard to the civil law a potential plaintiff can only claim compensation for a personal injury loss or damage that he or she has in fact sustained. A near miss – other than where it can be proved to have caused, for example, a severe psychological trauma – is not sufficient to justify compensation being awarded.
The Date of Knowledge
More often than not, the date of knowledge will be the date on which the injury was sustained. It is therefore important that an injured party contacts a solicitor at their earliest convenience following an accident. The harsh reality is that, save for several specific exceptions, the opportunity to make a compensation claim will be lost precisely two years after the date of knowledge. It should be remembered, however, that exceptions do exist and particularly cases of hospital negligence such as an illness that went unchecked due to misdiagnosis, for example, the date of knowledge may at time be difficult to clarify. In such circumstances one should always contact a solicitor at the first opportunity even if it initially seems that it is too late as an exception may well apply.
Injuries to children
In the case of a minor it is important to note that the date of knowledge of the injury is in fact the minor victim’s eighteenth birthday i.e. time does not begin to run against the injured infant until the infant reaches his or her majority (eighteen years of age). Thereafter, under current law, the injured party (who has now reached their majority) has two years within which to issue proceedings in court. The minor can however pursue a compensation claim before his or her eighteenth birthday provided a parent or guardian acts as his or her ‘next friend’. It is therefore still preferable that you contact a solicitor at the first opportunity should your child have been injured in circumstances where a medical professional was at fault.
How will value be assessed?
Liability
There are a number of factors which will normally influence the value of your claim, the first of which relates to an dispute over liability for the accident that may arise between the parties.
The cause of an accident is not always obvious. In many situations one party e.g. the medical team that provided treatment, may be completely to blame, however it is also true that more than one, or several, factors contributed to the injury that has been sustained. Moreover, one of the causal factors may have in fact been the negligence of the injured party himself. How then can blame be apportioned? Is the injured party entitled to any form of compensation if he or she has contributed, albeit slightly, to their own downfall?
Contributory negligence is the legal principle that an injured party i.e. the plaintiff may possibly have contributed to his or her own injury by acting in a negligent manner when faced with the obvious and known conditions.
In a case involving hospital negligence this may include circumstances for example where the plaintiff has in fact exacerbated the illness contracted or injury sustained due to the negligent care provided by their doctor by failing to co-operate fully with follow-up treatment provided (e.g. refusing to take prescribed medication or missing scheduled appointments etc.) when said care may have helped to cure or alleviate in part the damage sustained.
When this is compared with the negligence of the defendant (or defendants), the extent of contributory negligence may defeat the plaintiff’s case (i.e. the claim will be unsuccessful) or reduce the amount of compensation awarded.
Trauma suffered
It is important to remember that compensation is paid for the injuries that one has actually sustained. Unless a psychological injury or trauma can be proven to have occurred the nature of the accident i.e. that it was caused due to medical negligence and not by a road traffic accident for example is of very much secondary importance to the injuries that have in fact occurred to the plaintiff. Often, however, your solicitor or barrister will make reference to the dramatic or traumatic nature of the incident in negotiations or at trial as same will of course present your claim in a more sympathetic light and may contribute favourably to the case.
Medical Special Damages
Generally speaking, the costs of any specialist medical treatment that you have required or will require due to the injuries that you have sustained in the subject accident can be compensated for in full or in part.
Type of Injury
Notwithstanding which injury may cause the individual more pain, it is very often the case that injuries are valued according to their level of seriousness and whether or not they require objective proof (i.e. expert diagnosis) to be believed (e.g. a broken bone or a visible scar versus soft tissue strain). The permanency and persistence of the injury are of course also important factor.
Prognosis
Is the injury sustained likely to be permanent or have long-term consequences? Obviously the longer that symptoms are expected to be present the larger the compensation. What is also very significant is the age of the victim. If an injury is expected to have permanent effects, very often a similar injury may be ‘worth’ more to a younger plaintiff than an older person. This is due to the simple logic that a younger person can be expected to have to cope with the consequences for more time. On a basic level for example if a 20 year old person loses a limb the principle is that he or she may have to live with that injury for potentially 60 years or more. A person of 70 years old who suffers the same genre of injury, it will be assumed will not have to cope with that disability for the same length of time. Your claim value may also rise further if the Doctors consulted specify that you will require future specialist medical care.
Medical History
Your medical history and records are an important factor in assessing your claim. If you have a prior history of similar or identical injuries and of treatment of the same area of the body this may affect your claim significantly. Perhaps the key question is whether the medical negligence involved was the primary cause of the injury or only an aggravating factor?
Impairment of quality of life
Our work or careers are not the most important things in life and as such any medical negligence claim for personal injury compensation will take an impairment or loss of quality of life into account when value is being assessed. This is a very individual assessment for each plaintiff as every persons passions and interests will be different; a significant injury to the index finger for example may be viewed more seriously again if it can be proved that the plaintiff was a keen amateur pianist prior to the accident.
Severity and persistence of pain suffered
The very principal behind any personal injury compensation, be it for medical negligence or otherwise, is indeed to compensate you for your injury and related suffering, therefore the greater the pain suffered and persistence of same, the higher the compensation awarded is likely to be.
Loss of earnings
Strictly speaking this is a separate aspect to the hospital negligence personal injury claim but it often causes confusion for clients and frustration for both solicitors and barristers. Clients may often compare their settlement or award to that of a friend or acquaintance who received “€30,000 more than me!” for a similar injury. This may well be due to a significant loss of earnings which a plaintiff has been awarded due to a lengthy absence (or predicted absence from work). The figure awarded of course corresponds to that persons earning power or potential earning power. With respect to the loss of earnings (be it past or future) aspect of the claim, the gravity of the injury or illness contracted itself is only relevant insofar as it restricts that person from working. Personal circumstances will of course be a factor, a different type of injury may have entirely different consequences for the plaintiff depending on their respective profession e.g. a knee injury to a professional footballer or a facial scar to a model.
Summary
- There is a distinction between hospital negligence claims and personal accidents which occur on hospital premises.
- Hospital negligence compensation claims arise from when a medical practitioner is guilty of an error of treatment or lack of treatment in avoidable circumstances.
- To be successful, a claim for hospital negligence compensation has to prove that a medical practitioner demonstrated a lack of medical skill, or a lack of applying that skill.
- Special damages can also be included in hospital negligence compensation claims to include psychological trauma, out of pocket expenses and loss of earnings.
- You only have two years from the date of knowledge of medical negligence in which to make hospital negligence claims, so speak with our solicitor today on our free claims service.
It is important to note that each case is unique. If you feel that you have recently suffered injury or developed illness due to hospital 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 primary professional experience is the area of litigation and in particular personal injury claims. Eoin P. Campbell is currently lecturing in law at two universities in Lyon, France.