Medical negligence is an injury or consequence of medical treatment that could have been prevented or rectified. The type of the injury will determine whether or not negligence has occurred.
For example if you go into hospital for a routine operation, say an appendectomy, and after the surgery you experience continued abdominal pain. When you return to the doctors, they find a golden earring lodged in your colon. As a result further surgery and treatment is required and all because the original surgeon had been careless. In this kind of case you are eligible to lay a claim of medical negligence or malpractice. In Australia, as with many countries, medical practitioners are not exempt from liability, however if the care given is considered 'reasonable' and the injuries could not have been reasonably foreseen, then a claim cannot be launched. For instance in the case of a botched appendectomy, if the continued pain and injury were due to circumstances outside of the doctors control, perhaps the patient's immune system reacted poorly to the procedure, then the doctor cannot be held accountable.
If medical negligence and malpractice has occurred, you have the right to lay a claim and 'sue' the responsible parties. If the injuries were due to causes involving more than one person, the entire company and individuals can be held responsible. The key element in any medical negligence and malpractice claim is proving that the injuries could have been reasonably foreseen by another medical practitioner. What must be shown to the Judge is that the practitioner in question acted negligently, or in a way that should have and could have been prevented. These cases rely on scientific medical evidence as well as complex medical practice laws. Medical negligence and malpractice does not only cover physical injury, but also unethical practice. Doctors are required by law to maintain 'doctor-patient confidentiality' within reasonable bound of the law. If a psychiatric patient confesses to the intention to murder someone, the practitioner will not be liable for unethical practice if she alerts the authorities. However if the patient simply reveals the intention to leave her spouse, and the practitioner then alerts the spouse, that would be considered unethical practice. Medical ethics is extremely complex and an entire branch of Philosophy is devoted to the research. In lieu of this, it is pertinent to assess your claim objectively and ideally you should consult with medical ethics specialists and academics.
What to do
If you suspect medical negligence has occurred, the first step is to seek a second opinion. It is vital to seek specialist advice, so if the injury relates to your brain, you must see a Neurologist and not simply your GP. It is important that you attain all the relevant facts about your injuries and how they occurred. Although you personally do not need to acquire and organise this evidence, however you will want to gain a better understanding of your injuries and the subsequent process for compensation. When seeking a second opinion, it is important to consult with a recognised medical practitioner and preferably one that is in no way connected to the original practitioner. For example, if the injury occurred at a particular clinic, ideally you should consult a doctor at another clinic to avoid any clash of interest. If the injury is serious enough, you may have to elect a guardian to act on your behalf.
Although medical negligence and malpractice can occur, it is not always the reason for undesired outcomes of treatment. Similarly, if the injuries can be shown to be caused by prior disease or injury, say a genetic disease, then the claim is not valid. If in any way the injuries are the result of your own negligence or action, then the claim will not be valid. Because of the thorough nature of medical negligence cases, all details will be scrutinised, including your own actions.
The process
The first step in laying a claim, after seeking appropriate medical treatment, is to contact legal experts in medico-law. The intense investigation that must be launched means that specialists are required to assess not only the validity of the claim, but the possible outcome. Some claims, although valid, may not be economically viable. For example, if the injury was minor and did not effect you substantially, a lawyer may advise that the compensatory sum will not be worth the legal endeavour. Australia has one of the highest standards of healthcare in the world and all medical practitioners are held to the highest standard of practice, including ethical practice. The prevalence of negligence and malpractice is low, however the possibility still exists. Medical experts are still responsible for their actions as far as their conduct is concerned and they do not practice above the law.
What will harm your claim
Not all claims are successful and the case must be prepared and presented carefully. Witnesses can be unreliable and as time lapses, evidence can be compromised. In cases where more than one individual is responsible, it is vital to act immediately, ensuring that all the facts and testimonies are gathered before the possibility of contamination. Always ensure you gather and record any necessary information as well as the relevant expenses incurred. Any lack of evidence or misinformation will hamper your claim and could even cause its' failure.
In some cases doctors might band together in an attempt to evade the claim, each lying for the other. Because of this, it is vital that you employ the relevant legal experts to interview the witnesses and assess the testimony, Without the appropriate guidance and advice, your claim will not be successful.
What happens
Although compensatory sums are not always adequate, the strength of the case will determine the payout. If for instance the injury is severe enough, and you are unable to support yourself in future, a Judge may rule that the parties responsible compensate enough money to sustain you throughout your lifetime. When your claim is presented in court, the Judge will consider the evidence before her and rule accordingly. When considering your claim, the Judge will assess whether the injuries incurred could have been reasonably avoided. If the injuries that occurred are then deemed to have been as a result of negligence, your claim will be successful. Once the Judge has ruled on your case, she will then consider the appropriate compensatory fund. Your legal advisers will propose a sum in relation to the injuries and expenses incurred, as well as any pain and suffering. In cases of ethical malpractice, the Judge will assess whether the result of the infringement is worthy of compensation. For example if a practitioner shares a piece of superfluous information, although it is still a breach of ethical practice, the Judge may rule that the resulting pain and suffering did not warrant compensation. In some cases a Judge may rule that the claimant pay all legal costs in the event of a failed claim.
