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What Counts As Medical Negligence?

Medical negligence is one aspect of personal injury law, the part that deals with injury done by healthcare professionals.
That obviously raises one important question; who are healthcare professionals?
Healthcare professionals, for these purposes, consist mostly of the following groups:

  • Doctors (general and specialist)
  • Nurses, midwives and nursing assistants
  • Paramedics and EMTs
  • Dentists
  • Therapists, psychologists and social workers
  • Dietitians, physical, occupational, respirational and speech therapists
  • Certain providers of ‘alternative’ medicine such as phlebotomists and chiropractors
  • Medical laboratory scientists
  • Medical prosthetic technicians
  • Optometrists and audiologists

You should remember that there are other options available for dealing with some issues you may have with your healthcare professional, especially if suing the practitioner could mean you will permanently lose access to treatment.

Note that if you win your medical negligence case, you can only receive damages. You cannot force the negligent health practitioner to apologise, change their working practices, improve their standards or anything along those lines.

Duty Of Care

Medical negligence can be relatively straight-forward to determine, as it is much easier to establish a duty of care. A duty of care is one of the factors that needs to exist for medical negligence to have taken place.

Naturally, it is easy to argue that a healthcare practitioner has a duty to care for their patients.

Breach Of Duty

man on beach in pain
Image by Leland Francisco
Once duty of care has been established, you need to establish that there has also been a breach of duty – that the care required has not been rendered.

The Bolam test means that if a doctor (or other healthcare practitioner) fails to meet the standard required of a reasonably competent healthcare practitioner operating in that area of healthcare, they can be said to be in breach of their duty of care.

This breach of duty can occur at any stage during healthcare, from diagnosis to advice to treatment.

In some cases, no breach of duty has to be proved – for example, if the wrong patient underwent surgery, it would be the surgeon who had to prove that they did not breach their duty of care.

Causation

The breach of duty of care must have caused the damages which the claimant suffered.

In this case, this means either directly caused, indirectly caused, directly contributed towards or indirectly contributed towards the damages which the claimant suffered.

Damages

If you can prove breach of duty and causation, you then have to show what damages you have suffered.

Physical injury and psychiatric injury are acceptable forms of damage and loss, while grief or upset are not.

These damages have to be reasonably foreseeable, so a cosmetic procedure preventing you from finding employment would not be negligent while being unable to walk because of botched surgery would be negligent.

Loss of earnings and loss of quality of life come under damages, as do costs incurred (for example, in care or in necessary equipment) when dealing with the aftermath of the negligence.

Where Next?

Check out some of our other pages on medical negligence to learn more.

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