Proving medical negligence is similar to most other forms of negligence. Generally, the plaintiff needs to prove four elements:
- The medical personnel owed them a duty of care.
- The duty of care was breached or violated.
- The breach was the cause of the person’s injuries or losses.
- The losses can be calculated with certainty.
Duty of care: A doctor-patient relationship existed. You must show that you had a physician-patient relationship with the doctor you are suing — this means you contacted the doctor and the doctor agreed. For example, a plaintiff cannot sue where a doctor had prescribed the drug you used to another patient instead, or where the physician was overheard giving advice at a party. If a doctor began seeing you and treating you, it is easy to prove a physician-patient relationship existed. Questions of whether or not the relationship exists most frequently arise and often cause setbacks to the suit.
The doctor was negligent. Just because you are unhappy with your treatment or results does not mean the doctor is liable for medical malpractice. The doctor must have been negligent in connection with your diagnosis or treatment. To sue for malpractice, you must be able to show that the doctor caused you harm in a way that a competent doctor, under the same circumstances, would not have. The doctor’s care is not required to be the best possible, but simply “reasonably skillful and careful.” Whether the doctor was reasonably skillful and careful is often at the heart of a medical malpractice claim. A patient may be required present a medical expert to discuss the appropriate medical standard of care and show how the defendant deviated from that standard.
The doctor’s negligence caused the injury. Because many malpractice cases involve patients that were already sick or injured, there is often a question of whether what the doctor did, negligent or not, actually caused the harm. The patient must show that it is “very likely” that the doctor’s incompetence directly caused the injury. Usually, the patient must have a medical expert testify that the doctor’s negligence caused the injury.
The injury led to specific damages. Even if it is clear that the doctor performed below expected standards in his or her field, the patient can’t sue for malpractice if no harm was suffered. Here are examples of the types of harm patients can sue for:
- physical pain
- mental anguish
- additional medical bills, and
- lost work and lost earning capacity.
What Is Medical Negligence?
Medical negligence is defined as the reckless, improper, or unskilled treatment of a patient by a health care professional. This can include negligent care from a nurse, physician, surgeon, pharmacist, dentist or other health care workers.
Medical negligence forms the basis for most medical malpractice claims where the victim is claiming injury from medical treatment.
Nurses may be held to a different standard of care from a surgeon, since they have received very different forms of training. Also, surgeons may be held to different standards of care as surgeons who practice in a different field. While this may seem confusing, standards for medical care are consistent and can be defined from both medical textbooks as well as industry standards.
What Are Some Remedies for Medical Negligence?
Majority of legal remedies for medical negligence consist of a monetary damages award paid from the medical company or professional to the plaintiff.
This can cover medical expenses, extra hospital costs, and additional medicines. Limits on medical malpractice awards are well defined in order to prevent frivolous claims and requests for unreasonable damage award amounts.
What Amounts to Medical Negligence
The Rules of Professional Conduct for Medical and Dental Practitioners also known as the Code of Medical Ethics highlights some instances that would amount to Professional Negligence. Some of these are:
- Failure to attend promptly to a patient requiring urgent attention when the practitioner was in a position to do so.
- Manifestation of incompetence in the assessment of a patient.
- Making an incorrect diagnosis particularly when the clinical features were so glaring that no reasonable skillful practitioner could have failed to notice them.
- Failure to advise, or proffering wrong advice to, a patient on the risk involved in a particular operation or course of treatment, especially if such an operation or course of treatment is likely to result-in serious side effects like deformity or loss of organ.
- Failure to obtain the consent of the patient (informed or otherwise) before proceeding on any surgical procedure or course of treatment, when such a consent was necessary.
- Making a mistake in treatment e.g. amputation of the wrong limb, inadvertent termination of a pregnancy, prescribing the wrong drug in error for a correctly diagnosed ailment, etc.
- Failure to refer or transfer a patient in good time when such a referral or transfer was necessary.
- Failure to do anything that ought reasonably to have been done under any circumstance for the good of the patient.
- Failure to see a patient as often as his medical condition warrants or to make proper notes of the practitioner’s observations and prescribed treatment during such visits or to communicate with the patient or his relation as may be necessary with regards to any developments, progress or prognosis in the patient’s condition.
Explore this topic at the Annual General Conference of the Nigerian Bar Association scheduled to hold on 23rd to 29th August, 2019, at the Eko Hotels, Victoria Island, Lagos.