Medical Negligence Law and Misdiagnosis – What can be claimed?
In order to succeed in a claim for medical negligence in Ireland, it is necessary to prove that the medical practitioner was guilty of a failure which was so unacceptable that no other medical practitioner with the same level of skill and expertise would have behaved in the same manner when acting with ordinary care.
When trying to ascertain whether or not a medical practitioner has been guilty of medical negligence they must be compared to a medical practitioner with the same expertise and skill, meaning that a GP cannot be held to the standards of a vascular surgeon or a heart surgeon cannot be held to the same standards as a neurosurgeon. The medical practitioners being compared should be of equal skill and status and working in the same field of medicine in order for it to be a fair and conclusive comparison.
In order to be successful in a claim for medical negligence the principles as set out in the case of Dunne V the National Maternity Hospital and Jackson (1989) must first be satisfied. These principles can be summarised as follows:
- It must be proven that the medical practitioner was guilty of such failure as no other medical practitioner of equally speciality or skill would be guilty of if acting with reasonable care.
- It is not enough to prove that a medical practitioner has deviated from a general and approved practice. It must also be proven that the course of action that they did take would not have been taken by any other medical practitioner of like speciality and skill.
- On the other hand a medical practitioner cannot defend an action based on the fact that he followed a general and approved practice if it can be proven by the Plaintiff that the practice in question had inherent defects which ought to have been obvious to any person giving due care and consideration to the matter.
- If a case of medical negligence is brought before a Judge, it is not for the Judge to decide if one course of action is better than another where there is a difference of opinion between experts; it is in fact up to the Judge to decide whether the practitioner that followed one particular course of action instead of another has been negligent.
In order to prove a claim under this heading the patient must prove that had they been informed of all of the possible risks and side effects that they would not have gone ahead with the procedure or that they would have sought to undergo an alternative procedure.
It can be very difficult for a patient to prove that had they been given all of the information they would not have gone ahead with the procedure, especially if there were no alternative procedures available. It would only be advisable to bring a claim for medical negligence based on lack of disclosure and informed consent where the side effects arising from the procedure are common and therefore should have been brought to the attention of the patient.
- Pain and suffering
- Past treatment received
- Future treatment
- Psychiatric or psychological injuries
- Loss of earnings
- Cost of having adaptions carried out to the family home
- Cost of future care
- Cost of any aids or equipment necessary
- Costs of hiring someone to carry out household duties
- Any other costs that can be directly linked to the injury sustained