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MEDICAL ERROR, HOSPITAL ERROR, ADVERSE EVENTS & MEDICAL NEGLIGENCE

 

THE MEDICAL NEGLIGENCE EPIDEMIC

 

Statistics indicate that PATIENTS were harmed in almost 340,000 admissions to Australian hospitals in the financial year 2004-05 because of medical errors and other mishaps. More than 218,000 of those incidents occurred after patients underwent surgery or another procedure in a hospital and suffered an "abnormal" reaction or complication, according to the Australian Institute of Health and Welfare.

Adverse reactions to medication occurred in more than 90,000 admissions. And in more than 66,000 admissions, patients suffered complications from artificial limbs and implants. The Australian Institute of Health and Welfare report shows the number of admissions in which these incidents occurred rose by 20,000 in the past year — from 319,321 in 2003-04 to 339,551 in 2004-05.

Most of those occurrences, known as adverse events, were in public hospitals, where there were 238,388, or in every 5.6 per 100 admissions. In the private sector, there were 3.7 incidents per 100 admissions.

Hospitals define adverse events as incidents in which a patient was harmed while being treated. They include infections, falls and other injuries, and reactions to medication and medical devices. Some of these are preventable.

Many of these preventable errors may amount to "medical negligence" under the law.

Health care providers, doctors, nurses, dentists etc must provide treatment and advice that is in accordance with a reasonable standard of care. If your health care provider fails to take “reasonable care” then they have breached their duty of care to you. Failing to take reasonable care, in circumstances where the health care provider could or should have foreseen that their actions could injure you, is medical negligence. If you have suffered from medical negligence, then you may be entitled to compensation for your injuries, disabilities and loss.

Examples of treatment which may be considered negligent (depending on the circumstances of the case):

  • failing to diagnose a condition;
  • failing to provide the appropriate treatment for the condition;
  • failing to refer to a specialist;
  • delay in diagnosis;
  • failing to advise of risks associated with treatment;
  • failing to perform surgery with reasonable care and skill;
  • failing to report correctly on test results;
  • failing to provide post-operative care with reasonable care and skill.

Overview of the Law of Medical Negligence

 

The law of medical negligence in Australia can be found in written case law (court judgments/decisions of judges) and in legislation (Acts and regulations by parliament).

General common law principles are as follows:

To establish medical negligence, the patient must prove that:

1. The doctor owed the patient a duty of care;

2. The doctor breached that duty of care by some act or omission;

3. This act or omission has caused the patient physical and/or financial harm.

 

Duty of Care

Because of the dependence upon the health care practitioner for physical and mental care and wellbeing of the patient, the law has established that he/she owes the patient a "duty of care". This is based on the principle that a person must take reasonable care to avoid acts or omissions which would be likely to harm any person they ought reasonably foresee as being so harmed. If they fail to do this, a healthcare practitioner may be liable in a civil action for negligence.

If the healthcare practitioner's act has been so grossly negligent as to have been deliberately reckless of life and limb, it may be prosecuted by the criminal courts as criminal negligence or manslaughter.

 

Breach of Duty of Care

In considering whether one has breached a duty of care, the courts look at the standard of care which would be reasonably expected from a person acting in the defendant's circumstances, in the capacity in which the defendant was acting (eg as a doctor, nurse, dentist etc).

Healthcare practitioners do not have to be perfect, but have only to exercise the skill that a reasonable practitioner professing the skills in question would be expected to exercise  in the circumstances. To help the court make an assessment in this regard, expert witnesses (other healthcare practitioners experienced in the field) are called to give their opinion as to whether the actions in question were in fact reasonable under the circumstances.

It is impossible to set out a comprehensive explanation of what is a reasonable standard of care that covers every possible health care situation in one statement. Each case must be considered on its own merits.

 

Damages

A plaintiff must show that he/she suffered from harm, and that the harm was caused by the defendant's act or omission. Just as one can cause harm to another, but will not be liable at law if he or she was not negligent, a person can be negligent, but not be liable at law if no damage as been caused.

In law, the amount of compensation granted as a result of a successful negligence action is referred to as "damages".

Damages may be awarded for:

  • medical expenses
  • cost of appliances or housing alterations for someone with a physical disability
  • cost of care and domestic assistance
  • loss of income
  • general damages for pain and suffering.

IF YOU HAVE SUFFERED AN INJURY, DISABILITY OR A WORSE OUTCOME AS A RESULT OF:

  • medical error

  • poor medical treatment

  • delay in diagnosis

  • wrong diagnosis

  • wrong treatment and/or medication

  • loss of a chance at a better outcome

from a doctor, nurse, dentist, hospital or other health professional, then you may be entitled to COMPENSATION.

If you have lost a loved one as a result of medical error or medical neglect, you may also be entitled to compensation.


DO NOT DELAY IN SEEKING LEGAL ADVICE.

TIME LIMITS DO APPLY.


External resources:

Severe Injury Claims USA

 

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