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Health professionals, like all other occupational groups, have a duty to take reasonable care for the safety and well-being of the people they deal with. A failure to take reasonable care can, if injury results, lead to a claim of negligence. Medical negligence falls under the Civil Liability Act 2002 (Tas), where the provisions under Part 6, Division 6 outline the duties of registered medical practitioners to warn of risk, and the standard of care expected of professionals.

What is Negligence?

Negligence is not a failure to achieve perfection. Accidents and mishaps can and do occur for which no one can be blamed. Negligence is a failure to exercise the degree of care and skill which can be reasonably expected in the circumstances from someone with the particular professional’s training and experience.

In any court action for negligence the judge and/or jury will look at what happened, will hear what should have been done from expert witnesses called by both sides and will decide whether or not the particular doctor, hospital or its employees used all the care and skill which could reasonably have been expected.

Reasonableness is the key word. Thus, a junior resident doctor could not reasonably be expected to use the degree of skill which a leading specialist would apply in the same situation. However, there may sometimes be a question whether that doctor should not have consulted a specialist. In an emergency, a hospital team might reasonably be excused for not taking the same degree of care in checking a patient’s history as would have been expected had there been more time.

The Civil Liability Act allows for a standard of care to be judged according to whether peer professional opinion would judge the actions of the professional as competent and reflective of widely accepted professional practice in Australia (s22).

Accident Scenes

Health professionals are sometimes wary of volunteering assistance at the scene of an accident for fear of a negligence claim. This fear is unfounded because the same standard of reasonable care and skill applies.

The situation will excuse many things that might not otherwise be acceptable. The professional might be justified in attempting procedures which they could not ordinarily be considered competent to perform. A procedure which must be performed in haste at the scene of an accident, might reasonably be done without the same degree of care and skill which would be expected in a hospital. Once again, a court would look at all the circumstances, including the personal level of expertise and would decide what ought reasonably to have been done.

Who pays?

A person who has suffered harm as a result of the negligence of a health professional in a hospital would normally sue the hospital rather than the individual who was negligent, unless the injury was caused by the patient’s own private doctor.

Hospitals are vicariously responsible for the actions of all staff, visiting specialists and independent consultants who are part of the hospital organisation, but not for those employed by the patient themselves. This rule makes sense on public policy grounds, because it places responsibility on the body most able to ensure proper standards through the selection and training of staff, efficient organisation and supervision. It also protects patients who might otherwise find themselves suing someone who simply could not pay compensation.

This does not mean that an employee or consultant has no responsibility. They can still be sued. There is, however, little reason to do so. It remains for the hospital to take appropriate action against a staff member who has been negligent.

Difficulties in Medical Negligence Cases

In almost all cases, medical negligence will be very difficult to prove for two main reasons. The first is the difficulty in obtaining relevant evidence. An injured person must usually rely on the hospital or doctor to supply much of the evidence as to what caused the relevant injuries. They must also rely on the evidence of other doctors to prove that negligence was involved. Doctors may be reluctant to give such evidence.

The second reason is that almost all medical treatment involves some risk to the patient. The fact that someone is harmed by an operation, or other medical procedure, or received a course of treatment without any improvement does not mean that there has been negligence. It is necessary to point to some definite step, contrary to accepted medical practice, which the doctor or hospital did (or did not) take and to prove that the step would have avoided injury to the plaintiff if the doctor or hospital had followed accepted medical practice.

Apart from the difficulties in winning a medical negligence case, the question of damages is also difficult. The client in a medical negligence case is almost always suffering from a medical problem prior to the alleged negligence. It is only the medical problems which flow from the negligence which can be compensated and not, as many clients think, all of their subsequent medical problems.

One of the most important parts of a medical negligence case is to find out what really went on. All of the usual requests for medical reports should be made, including requests to the prospective defendant. However, these will often not give all of the information required, especially in relation to matters which occurred in a hospital.

In response to a request for a report, most hospitals will only supply a copy of the discharge summary, although the hospital will have many more documents which may be vital in the case. For example, nurses’ records relating to an operation are often informative and important documents, setting out what happened during the operation. Similarly, the cards and notes of a doctor are often more important than formal reports.

Accordingly, in almost all medical negligence cases, it is important to have access to all these documents. A solicitor experienced in the area of medical negligence law will know what documents to ask for and how to get them through the court process called ‘discovery’, which is a means of obtaining documents from the other party to a civil case.

The difficulty with this process is that it involves the expense of retaining a solicitor to take court action when ultimately that expense, when access to the relevant documents has been obtained, may not be justified because these show no negligence.

Independent Medical Reports

Almost no medical negligence case can be won without good medical evidence from an independent specialist doctor, but it can be difficult to find a specialist doctor who is prepared to become involved in such a case. Australian doctors generally do not like becoming involved in cases against their fellow doctors.

One useful technique is to ask for the name of another specialist from any specialist who refuses to see the person. This may lead to a specialist who is known by their colleagues to be willing to become involved in a medical negligence case. Another technique is to approach the medical faculties of Universities. Full or part-time academic doctors are more often willing to become involved in such cases than their full-time practising peers.

A third and more expensive alternative, which is usually a last resort, is to use overseas doctors from the United Kingdom, the United States or Canada.

Advice to Solicitors

In taking instructions, all of the above problems should be pointed out and discussed with the client. Because of the difficulty in finding out what went on, especially in relation to operations or other hospital treatment, a very comprehensive statement should be taken from the client at an early stage. While the client will usually not know the medical details of what went on, this statement may be important in assisting independent specialists in forming a view on whether there has been medical negligence.

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