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Medical Malpractice
To succeed in an action for damages in medical matters, negligence must be established. Medical malpractice usually falls within one of the following classes:
- Failure to diagnose at all or failure to diagnose in a timely manner;
- Failure to treat appropriately;
- Failure to provide or counsel appropriate follow-up;
- Failure to refer for specialist diagnosis/treatment;
- Failure to warn as to complications;
- Failure to perform treatment/surgery with the appropriate skill.
A bad result from treatment does not of itself establish negligence.
These claims are regulated by the Personal Injuries Proceedings Act 2002 and the Civil Liability Act 2003.
It must be shown that the doctor failed to exercise reasonable skill and care in all the circumstances including the doctor¹s specialty level and the location where the treatment was provided. It is often argued by the defence that the outcome was an unfortunate but unavoidable consequence of the procedure notwithstanding the provision of adequate care. Medical opinion is required from independent consultants who will advise on what standard of care you ought to have reasonably been entitled to expect from the treating medical personnel.
Doctors have been given special protection under the Civil Liability Act so that they are no longer liable for injuries they cause (even if they are negligent) if a significant body of medical opinion supports the way in which they went about the treatment or advice that led to damage.
Failure to warn
Doctors have a duty to warn as to the nature of all risks of treatment which a reasonable person would regard as being important to warn about, even if they are minor risks. They must also warn about risks which are particularly relevant to your circumstances.
If you suffer an injury from a medical complication about which you were not warned, you must also prove that had the warning been given, you would not have undertaken the treatment then. Claims by patients that they would not have accepted a 1 in 500 risk of a particular type of complication are sometimes treated with skepticism if for example they in fact accepted more serious risks about which warnings were given or otherwise known of.
Infection
Wound infection following treatment does not of itself establish any negligence. It must be shown that the infection was as a result of neglect such as sewing up a deep dirty wound or treating the injury site with a contaminated instrument.
Causation
A particular difficulty of medical negligence litigation is proving the extent to which the negligence has contributed to your overall condition. Expert evidence is needed to establish the difference between the disability attributable to the underlying pre-existing injury (ie the condition for which treatment was sought) on the one hand and the overall resulting disability on the other.
Notice procedures and timeline
An "Initial Notice" must be sent to the at-fault party (the negligent doctor or hospital) within 1 month after the day the claimant first instructs a law practice to act to seek damages for the personal injury and the person against whom the proceeding is proposed to be started is identified or 9 months from the date of injury (or first appearance of symptoms) whichever date occurs first.
The at-fault party then has 1 month to provide all relevant records and documents about your medical treatment.
From the date they provide the documents you have a further 12 months to complete and deliver to the at-fault party:
- The detailed Personal Injuries Proceedings Act Notice of Claim Part 1;
- A medical report supporting the claim
There must be a reasonable excuse for a delay submitted at the time the NOC-1 is lodged where it is lodged outside the applicable time limit.
The insurer then has six months in which to investigate your claim and to determine whether they will admit or deny liability.
Children's claims
For children, a Notice of Claim (NOC-1) Part 1 must be delivered to the at fault party before the earlier of:-
- 6 years after the day a parent knew or ought reasonably have know that the injury had occurred; or
- 18 months after the day a parent consults a lawyer about the possibility of making a claim.
If the Notice is not given as required, then the claim is not automatically barred but the at-fault party may seek a Court Order preventing the claim proceeding further.
If the Court allows the claimant to proceed, you may still be prevented from recovering expenses incurred before giving the notice including:
- Medical and other expenses
- Legal costs
- Any entitlement in respect of gratuitous domestic service you have provided
To complicate matters further, if you receive at any stage from another party a written "Notice of Adverse Event Arising out of Treatment" then the requirement for you to give the NOC-1 within the time limits referred to above, is more important. Rather than the at-fault party being able to obtain a Court order to stop the claim, the onus shifts to you to prove why you should be entitled to proceed with the claim. Even if the court gives you permission, the above consequence relating to recoverable expenses, etc will apply.
The 18 month time period is therefore absolutely critical.
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