Medical malpractice claims

Medical Negligence: What you need to know

Before it is determined whether a person has a valid claim or not, it is important to distinguish whether the claim falls into the category of medical negligence or medical malpractice.

Medical malpractice includes negligent and intentional acts or omissions. For example, a doctor / nurse unlawfully and intentionally breaching confidentiality (i.e. an invasion or privacy) or unlawfully and intentionally failing to obtain the patient's informed consent (i.e. assault).

Medical negligency on the other had refers to the conduct of the health practitioner and how that practitioner behaves in particular circumstances.

A practitioner will be judged according to the standard of care that any reasonable practitioner in similar circumstances would adhere to. Put differently, any conduct that does not meet the degree of skill and care that is expected of a reasonable and competent practitioner, in that particular branch of the profession, will be said to be negligent.

The legal test that the courts will impose is "whether the medical practitioner failed to foresee the possibility of harm occurring to his / her patients in circumstances where the reasonable practitioner in his / her position would have foreseen the possibility of harm occuring and would have taken steps to avoid or prevent it."

To establish who is to blame, the courts will be greatly influenced by expert evidence that is placed before the court and whether the Plaintiff has discharged the onus of proof.

What must be shown, on a balance of probabilities are:

  1. The medical practitioner / hospital acted negligently (i.e. the conduct did not meet the standards that a reasonable practitioner in similar circumstances would have exercised);
  2. That the patient suffered damages and
  3. That the damages are causally linked to the practitioners / hospital staffs negligent conduct.

Examples of Medical Negligence include, but are not limited to:

  • A failure to warn patients of certain symptoms that may arise post operatively that require the patient to return for further treatment;

Note: An error in diagnosis is not necessarily negligent. The test is always whether a reasonable practitioner in the same branch of medical practice would have made a similar error.

  • Performance of unlawful operations (failure to obtain the informed consent of the patient);
  • The use of defective medical instruments / equipment;
  • Wrongful blood transfusions;
  • Usage of the incorrect or incompetent techniques or procedures;
  • Leaving behind a medical instrument inside the patient's body after an operation / procedure and
  • Failing to provide sufficient after care for the patient.
  • If you are or have been a victim of medical negligence or know of any family member or friend who has been a victim, then you need to immediately contact an attorney for advice. At Campbell Attorneys we are committed to providing efficient and professional services, dealing with each individual case with compassion and sensitivity. So should you feel you have a valid case and want to discuss your matter, please feel free to contact Campbell Attorneys, where an experienced attorney will assist to provide the necessary legal advice and recourses available to you.

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