One day, you wake up feeling a headache and flue or stomach upset. You stretch from your bed and tell your caretakers or check your bank account to ascertain if you have money to pay your consultation fees and find out what you might be suffering from. Often, you google “the best clinics near me,” and the google search engine lines up the results. Confident that you will get the best services, you dial a number from the chosen clinic website, the lady on the other end of the phone answers, and after a few seconds, she schedules you an appointment. A bit relieved, right? You think, “Great; this headache will be over in a few days.”At the clinic, the doctor examines you and recommends a head scan. You are scared but still confident that this almost minor god will save your life. Unfortunately, the results are out, and you are told you have a tumor in your head and need surgery. Arrangements are made, and the surgery is performed. Unfortunately, the doctor forgets to stitch some part in your head, which causes you more health complications, and later on, you lose your sanity. Your family is furious because they think your doctor was negligent. They want a legal remedy.
In this article, I will show you how a cause of action in the cases of professional medical negligence arises, what you need to prove, and the available remedies.
Origin of medical negligence.
Medical negligence was born from the case of Donoghue vs. Stevenson. In this case, Lord Atkin explained the neighbour principle that “the rule that you are to love your neighbor becomes in law you must not injure your neighbor, and the lawyer’s question, “who is my neighbor?” receives a restricted reply. You must take reasonable care to avoid acts or omissions that you reasonably foresee would likely injure your neighbour. Who then in law is my neighbor? The answer seems to be persons so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”
What is medical negligence?
Medical negligence is an act or omission by a medical professional that deviates from the expected medical standard of care, resulting in injury, damage, or loss. The standard of proof is higher than the balance of probabilities.
Ingredients of medical negligence.
A claimant or patient must show that a) the doctor owed him a duty of care, b) the duty of care is breached, c) the breach caused injury or death d) the injury or death is a result of the breach of that duty.
Duty of care.
Medical professionals have a duty of care to their patients to provide medical treatment while exercising reasonable skills that any other medical professional in the same shoes would have exercised. This is termed the medical standard of care.
Although a patient may approach a medical professional expecting them to use all their skill and competence and refrain from doing anything to harm the patient, the doctor is not likely to save a life all the time but to fully use their unique skill to save a life. The case of Bolam v Friern hospital management committee (1957) held that medical professionals are not expected to guarantee the success of procedures or the perfect safety of their patients. A doctor who treats a patient negligently is liable for injury or death caused.
Standard of duty of care.
The standard of duty of care to be employed by a medical professional was laid down in the case of Lanphier v Phipps (1838) 8 C&P 475 at 478 that “every person who enters into a learned profession undertakes to bring to the exercise of it reasonable degree of skill and care. He does not undertake, if he is an attorney that at all events, you shall gai your case nor does a surgeon undertake the he will perform a cure nor does he undertake to use the highest possible degree of skill. Hence if a person holds himself out as possessing a special skill and knowledge, by and on behalf of a patient, he owes a duty of the patient to use due caution in undertaking the treatment.”
Breach of duty of care.
The claimant has to prove that the injury or death was caused by acts or omissions of the medical professional. There must be an unbroken chain of events leading to the said injury or death. To show deviation from usual medical practice, the claimant must prove that there was the standard practice, that the medical professional has not adopted that practice, that the medical professional instead adopted an approach that a reasonably skilled man would not have taken, as a result, led to the loss, injury or damage complained of.
Nature of duty of care.
The case of Dr. Laxman Balkrishnajoshi vs. Dr. Trimbark Babu Godbole & Anor AIR 1969SC128 laid down three medical-legal principles that govern a doctor-patient relationship.
a) a duty to care in deciding whether to take the case, b) a duty of care in deciding what treatment to give, and c) a duty of care in administering treatment. Breach of which leads to an action in medical negligence.
Causation.
Causation is the relationship between acts or omissions of the doctor and the injury or death caused to the patient. In other words, a patient has to prove that they would not have suffered the injury or death in question if it had not been for the actions or omissions of the medical professional hence the “but for test.”
In McGhee vs. National Coal Board, the court held that liability is only imposed if the court can establish that the defendant’s negligence materially increased the risk of the plaintiff being damaged in the way in question.
In the alternative, the court can apply the “res ipsa loquitor” principle. When translated into English roughly, a Latin phrase means the “facts speak for itself.”This is true in cases where procedures were conducted on the wrong side of the body or limb, and damages or death occur from that. In that case, causation is deemed to have been established unless there is a reasonable explanation to the contrary.
Remedies.
The remedies available are compensation and damages.
The Writer Mr. Simon Nyakoojo is a Co-Founder at The Judicial Sound Exponent, Writer, and Seasoned Politician. Email: [email protected]
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