Patients who are the victims of medical malpractice will undoubtedly demand justice. Especially as a great amount of trust is placed in their medical practitioners to provide a high level of service. It is well known, however, that mistakes can be made on occasion and in these circumstances patients will wish to seek an explanation for the mishap.
A case of clinical negligence is when it can be proven by the patient that the treatment provided by the doctor or other medical practitioner was sub-standard and this resulted in a mental or physical injury. Various procedures have been reported to have gone wrong over the years, such as objects being left behind in the patient and non-communication between the patient and doctor on certain risks that could be involved in the treatment.
The government figures have indicated that, around two people a week find surgeons have left behind foreign objects such as clips and screws, and surgical swabs. In the past year alone, the highest payouts included 115,000 to a person who had the tip of a needle left inside them, 75,000 to a patient who later found a surgical clip, and 60,000 to someone who still had ‘packaging material’ inside them after an operation.
The types of medical practitioners that can be held liable include:
GP’s
All NHS medical staff and hospitals
Dentists
Dentists
GP’s
The Duty of Care in more detail
For the claim to be successful, the patient will have to prove that some serious errors were made in the course of treatment, which no other competent doctor would have made. If however, it is shown that another doctor within the same speciality would have endorsed the same method of treatment, and then it is unlikely the patient will succeed in their claim.
It is up to the medical practitioner to keep up to date with the latest developments in the medical field. This will be an important factor to be considered in deciding the medical practitioners’ liability. The method of treatment used by the medical practitioner in question will be assessed in accordance with the current medical knowledge at the time of the incident.
The case that outlined this was the famous case of Bolam v Friern Hospital Management Committee. In this case it was held that ‘the test as to whether there has been negligence or notis the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art’.
A major point of authority in deciding whether medical negligence has occurred was outlined in the famous case of Bolam v Friern Hospital Management Committee. In this case it was held that ‘the test as to whether there has been negligence or notis the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular Art’. This case outlined that if the medical practitioner can find another medical peer that would have also followed the same method of treatment, then they should be able to establish a defence.
According to the case, if another recognised medical body of practice in the same speciality can give evidence that they would have used the same method of treatment, then the medical practitioner may not be held liable. One problem with this can be when there is more than one way to treat a condition. However, if the medical practitioner can find another doctor who supports his choice of action, then it is very unlikely that the court will find the medical practitioner liable.
Whilst a doctor may have a defence, it has now been estimated that clinical negligence payouts by the NHS are expected to rise by 80% next year. With the average victim pocketing 17,900 the mistakes have cost the NHS a total of 9 million over the past five years, with payouts made to more than 550 patients.
Ayesha Salim , editor of the UK Lawyers Network, writes articles about Solicitor, solicitor, Accident compensation, find a solicitor, legal, lawyer, law help advice, solicitors litigation
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