When is medical treatment medical negligence?

Being a patient can be difficult. You are putting your health and sometimes your life in someone’s hands. You trust that person to help you and to fix your medical problem. Most patients have largely positive experiences with the medical profession and in hospitals. In 2016/17, only 5.5% of hospital admissions resulted in complications or adverse events. For those patients, the results can be disastrous and life-changing both physically and emotionally.

Common issues in treatment

Healthcare practitioners, hospitals and other healthcare facilities owe a duty of care to their patients to exercise reasonable care and skill.  In some instances, patients do not receive gold-standard treatment and complications may arise. However, not all complications and substandard care constitutes medical negligence. Often aspects of care that are frustrating and personally disappointing, such as poor bedside manner and poor communication, do not amount to negligence.

In many situations, an apology goes a long way to acknowledging the unnecessary pain and suffering a patient has been through as a result of inadequate care and treatment. Under NSW legislation, an apology is not an admission of guilt or liability. Policies exist in the public health system to encourage practitioners to apologise to patients where appropriate. Those policies unfortunately do not extend to private hospitals and practitioners, although the legislative protection does.

How do we prove medical negligence?

In order to prove medical negligence, you must first establish that the conduct of a hospital, surgeon or other healthcare practitioner fell so far below the accepted standard of care at the time that it amounted to a breach of duty of care.  You must then show that the breach caused you to suffer a personal injury by establishing that it is more likely than not that you would have avoided your outcome if you had received an alternate course of treatment.  Finally, you must show that you have suffered some harm or damage.

This can broadly be classified under four headings: non-economic loss (pain and suffering), past and future out of pocket expenses, past and future economic (wage) loss and past and future domestic assistance and attendant care on a commercial basis or on a gratuitous basis for assistance provided by family and friends.  The level of ongoing harm, suffering and disability directly translates to the amount of compensation you may be entitled to recover.

At each step of the way, we require evidence from expert medical practitioners.  In order to establish breach of duty of care and causation (liability), we require evidence from practitioners who would be regarded as peers of the prospective defendant.  For example, in a case involving negligently performed brain surgery, we would require expert evidence from a neurosurgeon (the practitioner who performed the operation) as opposed to a neurologist.  It is important to get the right opinion from the right expert; a case can be won or lost on the strength of the expert evidence.

A local example

In the financial year of 2016-17, NSW public hospitals paid more than $37 million in compensation. Two of our local hospitals, the John Hunter Hospital and Tamworth Hospital, sat at first and third respectively on the list of highest individual hospital payouts. These hospitals fall within the scope of the Hunter New England Local Health District; one of the biggest local health districts in NSW. The HNELHD encompasses a major metropolitan centre (Newcastle), regional communities and remote communities. The John Hunter Hospital is the most northern tertiary hospital and major trauma centre in NSW. Because of this, it receives patients from all over NSW, including from as far as Northern NSW, Wee Waa and Moree, who require treatment across a broad range of specialties from obstetrics and emergency to cardiology and paediatrics.

Mistakes are bound to happen given the sheer number of people who receive treatment in hospitals and in private practice. There are a myriad of reasons behind why mistakes are actually made. Sometimes they are due to incompetence, but it may also be due to inadequate training, inexperience or system pressures including poor funding. Whatever the reason, mistakes in medical situations are costly and can have devastating consequences on already vulnerable people.

Turn to Turner Freeman

At Turner Freeman, we have lawyers in Sydney and Newcastle who specialise in medical negligence claims. We can advise you regarding your entitlements in this complex area of law. If you or someone you know has suffered as a result of medical negligence, we encourage you to call us on 13 43 63 to speak with one of our medical law experts.