Surgical Error – How do I know if I have the potential to make a claim?
The prosecution of a medical negligence claim can be very complicated and complex. It need not be. The prosecution of a claim as against a healthcare professional whether that be a surgeon, doctor, nurse, physiotherapist, dentist or other healthcare provider follows the same processes and procedures as does any other personal injury action.
Should there be an adverse outcome from a surgical procedure, the question arises as to whether same constitutes an identified and inherent risk of the procedure itself or alternatively, arose as a result of some negligence on the part of the surgeon. The mere fact that there has been an adverse outcome from any particular medical procedure is not in itself negligence on the part of the healthcare professional. Far more needs to be proven.
In order to successfully prosecute a claim as against a surgeon what needs to be proven, ultimately to the satisfaction of the court, includes:
That the surgeon owed the patient a duty of care.
That the duty of care was breached.
That as a result of the breach of the duty of care the patient suffered injury, loss or damage.
It is well settled law that a surgeon or any other healthcare professional owes a duty of care to the patient they are treating. As to the breach of duty we look to the provisions of Section 5O of the Civil Liability Act 2002. It provides for the relevant duty of care owed by a professional, such as a surgeon, to a patient. In essence Section 5O states:
A professional does not incur a liability in negligence arising from their professional service if it is established that the professional acted in a manner that was widely accepted by peer professional opinion as competent professional practice.
The peer professional opinion relied upon must not be irrational.
The fact that there are differing peer professional opinions concerning a matter does
not prevent any one or more of those opinions being relied upon
The peer professional opinion does not have to be universally accepted to be considered widely accepted.
Therefore, in order to establish any breach of duty of care on the part of the professional, in this case the surgeon, it is necessary to establish that the surgeon did not act in a manner that would be accepted by peer professional opinion as competent professional practice.
Let us assume for the moment that a complaint is made with respect to the service provided by a neurologist. In those circumstances it would be necessary to recover expert evidence from a peer of the neurologist, that is another neurologist, that the conduct complained of contravened competent professional practice.
If such evidence is available and accepted by the court then the claim will be successful to the extent that breach of duty of care has been established.
What also needs to be proven is that as a result of that breach of duty of care the patient suffered injury, loss or damage. This is what is referred to as “causation”. The court must be satisfied that the breach of duty which has been proven caused or materially contributed to the injury, loss or damage complained of.
As I have said, the prosecution of a medical negligence claim can be complicated and complex but it need not be. Brydens Lawyers are the experts in the investigation and prosecution of all medical negligence claims. Strict time limits apply with respect to the prosecution of a medical negligence claim. Therefore, if you are concerned or dissatisfied by the adverse outcome of treatment provided by a healthcare professional then contact Brydens Lawyers without delay for a free one-on-one assessment. Brydens Lawyers can be contacted on 1800 848 848 or at brydens.com.au. At Brydens Lawyers – #WE DO medical negligence claims.