This of course depends on the type of medical error that is alleged and how it occurred.
The health professional will not be legally responsible for treatment that was provided which can be shown to have been widely accepted as being competent professional practice in Australia at the time the service was provided. Therefore it is necessary to obtain appropriately qualified expert medical evidence which compares the treatment provided with competent professional practice.
The position is slightly different for a case that involves the failure to give proper advice and information about material risks. Although the courts ultimately determine the issue of the scope and duty to give adequate advice, expert evidence again is crucial in working out what advice and information should have been given in the particular circumstances.
Breach of duty of care
In many cases, the challenge of showing that a health care professional breached the duty of care is surprisingly easy to deal with. Further expert evidence is then needed however to demonstrate that the breach caused the injury or loss. Linking the breach and the injury or loss can become difficult. This is especially so where what has to be worked out is the likely course of events had one or a number of things not gone wrong.
Sometimes a delay in making a correct diagnosis or to provide appropriate treatment is shown by expert evidence to be likely to have led to the same treatment and expected outcome anyway. Or, where there is a failure to consider test results, the claimant has to show:
- what further investigations would have been recommended by the doctor;
- what advice would have been given about the need or urgency of those further investigations;
- whether the claimant would have followed the recommendations of the doctor and undergone those further investigations;
- what the outcome of those further investigations would have been;
- when those investigations would have happened;
- what treatment or management was likely to then have been instigated; and
- what difference if any that would have made to the outcome.
These matters must all be investigated with utmost attention. Once again, proper preparation and expert evidence are important.