Thursday, February 4, 2016

Medical Malpractice

You break your leg. You go to the hospital or health centre and get your leg out in a cast. But your leg never heals properly and you can't walk properly anymore. Can you sue the health provider for doing a bad job?

Perhaps, but claims against health practitioners are, quite properly, difficult to prove.

Medicine is not an exact science and health practitioners, no matter how skilled, cannot promise renewed good health.

That said, a health practitioner must exercise a reasonable and acceptable standard of care, competence and skill in attending upon the patient If that is not done and, as a result, the patient suffered harm then there is a claim for malpractice.

Four elements must be proven for any claim for malpractice to be successful:

1. There must be a duty of care owed towards the patient.

Accepting a patient creates an obligation to attend upon the patient as circumstances reasonably permit. The health practitioner is not expected to be correct every time but is expected to exercise reasonable care, skill, and judgment.

2. There must be a breach of that duty of care.

In determining whether a health practitioner has breached a duty of care toward a patient, the courts consider the standard of care and skill that might reasonably have been applied by a colleague in similar circumstances. In this regard, the courts have stated that "Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing and, if he holds himself out as a specialist, a higher degree of skill is required of him than one who does not profess to be so qualified by special training and ability." Perfection is not expected or required – reasonable care and skill is the standard. To prove the duty of care other health care practitioners are inevitably needed to let the Court know what is the current practice for reasonable health care practitioners.

3. The patient must have suffered some harm.

To establish malpractice, it is not enough for the patient to show that there has been a breach of a duty of care. The patient must also show some harm or injury. So, for example, a failure to diagnose something obvious may well be a breach of a duty of care but if the error is caught before the illness gets worse there may well be no harm caused.

4. The harm must be directly related or caused by the breach of the duty of care.

Suppose a patient is brought to a health centre with gunshot wounds. The patient is given the wrong treatment and dies. That sounds like a good case for malpractice but if the patient would have died anyway the claim will likely fail. If the health practitioner made errors but the errors did not cause any harm to the patient the the patient has no claim for malpractice.

As can be seen bringing a successful malpractice claim is difficult. And that makes sense. Health care practitioners do not guarantee health; they only guarantee to use reasonable care and skill. Health may follow – it usually does – but if not there is a legal claim only if reasonable care and skill is not used and that failure leads to harm.

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