Legally, negligence is the failure to do something that a reasonable person, influenced by those considerations that typically govern the conduct of human affairs, would do or the doing of something that a sensible and rational person would not do. In tort law, negligence refers to breaching a legal duty to exercise reasonable care, resulting in unintended harm to the complainant.
Doctors who provide poor treatment or a wrong diagnosis that hurts their patients have committed medical negligence. It can also occur when the doctors fail to adhere to the acknowledged medical standard of care.
It is crucial to understand that all doctors and healthcare workers are held to a certain level of care when looking after their patients. What if they did not follow the accepted medical procedures, and the patient was hurt, or their condition worsened? The patient could pursue a negligence claim if this is the case.
Section 6(1)(a) of the Limitation Act stipulates that a lawsuit for negligence must be filed by six years from the date of the negligent act complained of or six years after the date the injury arose. This 6-year time limit only applies if the lawsuit is against private hospitals or doctors who work in private practice.
The Public Authorities Act 1948, which governs actions against government hospitals and public health employees, sets a limitation term of only three years from the date of negligence or the date on which injury transpired.
If the patient’s death resulted from a negligent act, the deceased’s next of kin would typically act as the deceased’s legal representative. Section 7 of the Civil Law Act 1956 specifies that in such a circumstance, they have three years to file a civil claim in court.
If the lawsuit is not filed within the allotted time frame, the court might dismiss it as “statute-barred, no matter how strong the case is.
In every action asserting medical negligence, the plaintiff must convince the court that all four components of negligence exist in the case.
The notion of “duty of care” is rooted in the contractual relationship between a doctor and patient, in which the physician has an obligation to provide a diagnosis and inform the patient of the proposed treatment plan and any associated risks before the treatment ins initiated.
For a patient to make an informed decision about whether or not to undergo a suggested treatment, it is important to explain the planned treatment and its potential side effects in detail and confirm that the patient has the intellectual capacity to absorb and appreciate this information. After a patient gives explicit consent to be treated, the doctor has a duty of care towards them.
It must be demonstrated that the defendants did not exercise the degree of care, skill and effort that typically characterises the reasonable average merit of ordinarily good doctors in the same field of practice.
This indicates that the Defendants did not fulfil the anticipated medical standards and acted inappropriately. The error must have been below the average of a competent doctor. To put it into practice, the court will administer the test by determining the standard of the ordinary skilled man exercising and purporting to have that specific skill. Yet, in order to be judged negligent, the defendant does not need to possess the utmost expert competence; it is sufficient if he used the average skill of an ordinary competent doctor performing that particular conduct.
A patient who has suffered losses due to medical negligence may be entitled to compensation in the form of damages. Damages could cover the patient’s medical expenditures, loss of earnings, physical injury, mental anguish and emotional distress resulting from the negligent act.
To prove their losses, patients should keep track of the following:
If the hospital refuses a patient’s request for a copy of their medical records, the patient can either file a request under the Personal Data and Protection Act 2010 or initiate a pre-action discovery application, both of which are civil proceedings that demand the hospital to disclose the medical records.
Plaintiff cannot assert a claim of medical negligence against Defendants, regardless of how negligent they may have been unless they can prove it. To successfully sue for damages, the patient must prove that the alleged negligent act caused the injury. This connection must be direct, natural and unobstructed by any efficient intervening cause.
In other words, the act of negligence must directly cause harm. A medical expert’s testimony is required to support the argument that the doctor’s negligence or incompetence directly caused the injury.
Typically, a plaintiff in a negligence action can seek both special and general damages. General damages are granted for intangible injuries and losses, such as pain and suffering, emotional anguish and death.
If the plaintiff can prove that the negligent act caused them to lose the ability to generate an income in the future, they can file a claim for that loss of potential income under Section 28A of the Civil Law Act of 1956.
Meanwhile, special damages are often described as losses that may be quantified precisely, such as the cost of procedure necessary by the negligent treatment, cost of medication, hospital bills, nursing care, medical equipment, and loss of income for the exact period Plaintiff was unable to work due to their injury.
To substantiate these claims, Plaintiff must produce the appropriate documents, particularly when claiming special damages.
When a patient hires a lawyer to pursue a claim of medical negligence, the lawyer will engage with a medical expert with expertise in the subject of medical care to which the alleged negligence is concerned. The medical expert will conduct appropriate assessments, analyse the client’s medical record, and prepare a report explaining how the treatment was negligent. Before resorting to a lawsuit, the lawyers must evaluate if the plaintiff has a strong claim for medical negligence.
If the Plaintiff’s case proceeds with a claim, Plaintiff will need to bear in mind that they are seeking compensation from the hospitals or the doctors’ insurers for their losses. In practice, insurers will consider and advise whether it is feasible to defend the lawsuit or resort to mediation. Mediation is an out-of-court settlement in which all parties attempt to agree on a resolution and an amount of compensation. If Plaintiff accepts the insurer’s offer, Plaintiff will be prevented from pursuing the matter in court to determine whether the Defendants were medically negligent.
If a settlement cannot be reached, the lawyer will advise the Plaintiff to pursue the claim in court, where the parties will be required to attend a trial. At trial, the Plaintiff will be required to establish their claim by presenting evidence and expert witnesses for the court to evaluate in deciding whether the Defendant acted negligently.
