The Advertiser recently reported that there had been "almost 80,000 incidents ranging from catastrophic failures causing deaths to serious mistakes with medications, dangerous falls and near misses" within South Australian hospitals in the last 12 months.
The report focused on four examples of medical negligence that have affected a significant number of South Australians. These included "the cochlear implant scandal," "the chemotherapy debacle," "the BreastScreen fiasco" and "the false-positive prostate cancer mistake."
Whilst these are examples of many individuals being affected by widespread and systematic failures, we cannot forget those who fall victim to one off incidents of medical negligence.
As patients, we place a lot of trust in the medical professionals caring for us, but sometimes things don't go to plan and negligence occurs. The consequences of medical negligence can be life changing, not only for the patient but also their families.
Medical professionals owe their patients a duty to act with due care and skill. In South Australia, the standard to be applied by the Court in determining whether a medical professional has acted with due care and skill is to be determined by reference to:
- what could reasonably be expected of a person professing that skill; and
- the relevant circumstances as at the date of the alleged negligence and not a later date.
Who can medical negligence claims be made against?
Claims can be made against hospitals, medical professionals such as doctors, surgeons, dentists as well as allied health professionals such as physiotherapists and chiropractors. Examples of medical negligence claims include:
- a failure to diagnose or the misdiagnosis of an injury or illness;
- a failure to provide specialist obstetric care resulting in birth injuries;
- a failure to identify infection within a timely manner;
- a failure to provide treatment or refer a patient for appropriate investigations;
- a failure to obtain consent from the patient;
- a failure to prescribe appropriate medication;
- a failure to warn of potential side effects and risks of treatment and medication.
How is a claim determined?
Establishing that a medical professional has been negligent is not enough to successfully pursue a claim. You must also establish that the negligent care or treatment resulted in injury, loss or damage. This is often the most difficult step.
If it can be established that
- the care and treatment provided by the medical practitioner was negligent; and
- injury, loss and damage have been sustained as a consequence of that negligent care and treatment,
then it is necessary to assess the quantum or value of the claim.
The total value of the claim will generally be comprised of claims under the following main heads of damage:
- Pain and suffering;
- Economic Loss;
- Medical and Treatment expenses;
- Equipment expenses;
- Care and Assistance;
- Loss of consortium.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.