Medical negligence or medical malpractice is a cause of legal action when a medical practitioner causes injury to a patient because of negligent acts and/or omissions and the provision of substandard care. A medical professional should provide a level of care that does not deviate from the standards of the medical profession and the care that would be provided in similar circumstances by other skilled healthcare professionals.
A wrong diagnosis, failure to diagnose, delay in diagnosis, surgical errors, failure to provided required treatment, are some of the most common medical errors. The medical error itself is not sufficient to establish that there is a good claim for medical negligence. The error must have caused the injury to the patient. Medical errors that take place but do not cause an injury to the patient do not give rise to a medical negligence claim. A patient who suffered injury due to medical negligence can claim damages not only for the injury he/she suffered but also for any economic loss as a result of the injury, for example medical and other expenses.
Examples of medical negligence
Some common examples of medical negligence include the following:
∙ Delayed diagnosis or misdiagnosis of meningitis
∙ Infections acquired in hospital
∙ Unnecessary surgery
∙ Poor aftercare after surgery
∙ Surgical errors
∙ Birth injuries
∙ Prescribing wrong medicine
∙ Ignoring laboratory results
Some medical negligence claims are settled out of Court while others require litigation. Medical professionals are usually insured but sometimes the claim is higher than the insurance coverage amount. Large claims often end up in Court, especially if there is a chance that medical negligence can be successfully disputed.
Steps of the process:
These are the most common steps of the process from the initial contact with the medical negligence lawyer until completion of the case and recovery of compensation.
1.Contacting a law firm
The first step of the process is contacting a law firm and providing them with a summary of the facts surrounding the case and why you think the medical professional in question has been negligent in the provision of his/her services to you.
2. Legal fees
If the law firm is convinced there is a strong case, and they are willing to take the case they will agree with the client their legal fees for managing the case. Law firms will often take such cases on a ‘no win, no fee’ basis. If the case is strong, the law firm can be confident that they will recover their fees from the medical practitioner in question or more commonly from his/her insurance company.
3. Medical records
Assuming not all medical records are available, the client or the law firm would seek to obtain all relevant medical records from all doctors and/or hospitals involved in the relevant facts surrounding the medical negligence case.
4. Medical report
One or more medical experts would be instructed to draft a report on the issue of liability and whether there was a breach of duty on behalf of the medical professionals in question. The report must show whether substandard care had been provided and whether this negligence has caused the injury the client has suffered. Sometimes a law firm will not be certain there is a good case until they have reviewed the medical report, especially in complex medical cases.
5. Valuation of the claim
There are two types of damages, ‘General damages’ and ‘special damages’. General damages relate to the pain and suffering the client has suffered because of the negligence in question. General damages are calculated based on caselaw and reviewing what other claimants have received as general damages in cases with similar facts. ‘Special damages’ relate to out-of-pocket expenses. These losses can be past or future losses that the client has suffered. Common examples are medical expenses, travel expenses and physiotherapy costs. Upon reviewing the documentation proving any expenses and reviewing the relevant case law, the law firm would calculate the general and special damages.
6. Seeking to settle out of Court
A letter of claim is sent to the relevant medical professionals presenting the allegations against them. If liability is admitted, the case can be settled out of Court within a brief period. If liability is admitted, the two sides would negotiate a fair settlement of the case. If the claim is contested, the lawyers of the defendant would pursue Court action.
7. Issuing Court proceedings
If the claim cannot be settled out of Court, the lawyers of the claimant would need to issue Court proceedings. Court proceedings are generally lengthy and can take several years. Many medical negligence cases do not go to trial and are often settled before trial.
Our lawyers have the experience, knowledge and skills to manage the process from the very early stage until completion. Our services include:
∙ Initial and free consultation to discuss the case and establish whether there is a good case or not.
∙ Managing through a Power of Attorney the process of obtaining the medical records on behalf of the client from the various doctors and/or hospitals involved.
∙ Assessing the strength of the case and calculating the estimated general and special damages.
∙ Negotiating with the medical practitioner and/or his lawyers and/or insurance company seeking to settle the case out of Court in a speedy manner.
∙ Issuing Court proceedings and managing the process until completion.