What is medical negligence?
Medical negligence can be generally defined as the situation where a doctor or hospital (or both) provided ‘bad’ medical care which caused damage to a patient’s health. It can include giving wrong medical advice, making a wrong diagnosis, prescribing the wrong medication, mistakes in a surgical operation, and failing to act on time.
Not every ‘mistake’ will constitute medical negligence. There are broadly two principal components to a medical negligence claim:
Firstly, the ‘mistake’ must be one which fell below the standard of a competent medical professional. In other words, the Court will take into consideration what a competent medical practitioner or hospital would have done in that same situation.
Secondly, the ‘mistake’ must have caused damage to the patient’s health which would not have otherwise occurred. The damage or injury to the patient’s health completes the legal cause of action of medical negligence.
Time limits.
A civil suit needs to be filed in Court within six (6) years from the date of the negligent act complained of or the date from which the injury arises. If the civil suit is filed out of time, it can be struck out by the Court for that reason alone regardless of the merits of the case. If the negligent act resulted in the death of the patient, the estate of the patient (usually represented in law by family members) will have three (3) years to file the civil suit in Court. How to determine if you have a potential claim?
The most important step is to first obtain all the medical reports and medical records regarding the treatment in question.
The medical reports are reports prepared by the medical practitioners to summarise the patient’s history, complications suffered, the doctor’s diagnosis, and the treatment given. It is important to understand that the medical report is often prepared after the medical treatment has been given and is a recollection of events from the doctor’s point of view. It is therefore understandable that the medical report might sometimes exclude information that might be harmful to the doctor or the hospital.
Therefore, aside from the medical reports, it is crucial to also obtain the medical records. Medical records are the documents prepared and used by the doctor and nurses from the start of the treatment till the patient’s discharge. Picture it as the patient’s complete file containing the hospital admission forms, records of the patient’s condition, the exact time and dosage of medication given, and many more. If there was a surgical operation, the medical records will also contain details such as when the surgery began, who were the doctors present, and what were the patient’s vitals during the surgical period.
The medical records will contain a significant amount of information that is crucial in determining whether the treatment given was below the requisite standard. How to obtain the medical reports and medical records?
Medical reports can usually be obtained simply by making a request (either by the patient or the immediate family) to the hospital and paying a fee.
Medical records, however, are often a lot more tricky because it contains information which can potentially be used against the doctors and hospital.
If the hospital refuses to provide a copy of the medical records, the patient will either have to make a request under the Personal Data and Protection Act 2010 or commence a civil proceeding (known as a pre-action discovery application) to compel the hospital to disclose the medical records. Expert Evidence.
After obtaining the medical reports and medical records, the next step is to obtain an expert opinion as to whether the medical reports and records disclose a potential negligent act i.e. whether doctor or hospital (or both) had acted in a manner below the standard of a competent peer.
An expert, for this purpose, is an individual who has sufficient professional training and/or experience on the subject matter in question. For example, if the complaint relates to a heart surgery, the plaintiff will need to engage a doctor who has professional qualifications and/or experience in such surgeries as the expert witness.
Once an expert is engaged, he or she will, as mentioned, study the medical reports and records and give an opinion as to whether there is a potential negligent act.
Ultimately, the decision of whether the patient (or the family) has a potential medical negligent claim worth pursuing almost entirely depends on what the expert’s opinion.
Therefore, it is highly advisable for any potential plaintiff to first carry out the above steps of obtaining the medical reports and records, and engaging a qualified expert to give an opinion on the same before even filing a civil suit. It is not a situation where the plaintiff can simply file a claim first and then supplement the case later with expert witnesses. Such an approach is very likely to result in a waste of time and cost, and worst of all, risks the claim being dismissed for being pleaded wrongly. What can you sue for?
A plaintiff can generally sue for two categories of damages – special damages and general damages.
Special damages are losses suffered that can be specifically quantified. This includes, for example, cost for surgeries necessitated by the negligent treatment, medication, hospital bills, nursing care, equipment (such as wheelchairs or crutches), and loss of salary for the period the plaintiff was unable to work due to the injury. Such expenses incurred which can be definitively quantified can be claimed as ‘special damages’ and are proven by producing relevant documents such as hospital bills and the employment contract.
General damages, on the other hand, are awarded to represent injury and losses that cannot be easily quantified in monetary terms. This includes pain and suffering, emotional trauma, and loss of amenities of life.
General damages also include loss of future earnings (see section 28A, Civil Law Act 1956). The law provides a formula to calculate the plaintiff’s loss of future earnings based on what the plaintiff is proven to be personally earning at the time of the negligent act. It does not accept as a consideration any prospect of the earnings being increased at some time in the future. No loss of future earnings can also be claimed if the plaintiff is 60 years old or older at the time of the injury. Claims for this damages will have to be proven based on expert opinion as to the physical and emotional damage caused to the plaintiff as a result of the injury and other relevant evidence such as medical quotations from which the Court can extrapolate the cost of future medical care.
The law also allows the plaintiff to claim the above matters regardless of whether the plaintiff can make a claim on his or her insurance policy for the same. So, even if the plaintiff’s hospital bills are covered by his or her insurance policy, the plaintiff can still claim the same from the defendant doctor and/or hospital if the plaintiff proves his claim against them. What happens after you file your claim?
In practice, doctors and hospitals have their respective insurer companies. The insurer companies will be legally advised as to whether it is worth defending the civil suit or if it is better to have an ‘out-of-court-settlement’.
In such settlements, it is a virtual guarantee that the insurers for doctors and hospitals will ask as a condition that the plaintiff agrees to keep the terms of the settlement confidential and that the settlement is made by the doctor and/or hospital without any admission of liability. This basically means that, in exchange for obtaining a monetary compensation, the plaintiff will not be able to pursue the matter in court to obtain a finding that the doctor and/or hospital was indeed negligent.
In certain situations, such a finding is important to the family to obtain closure. To some, obtaining a finding by a Court that the doctor and/or hospital was negligent is more important than any monetary compensation. If so, the matter will have to go to trial where fact and expert witnesses will be called to testify.
The Court will then make a determination after the trial process is concluded as to whether doctor and/or hospital being sued had acted negligently.
The entire civil suit from start to finish can range from 9 months to a few years.