Who do I sue in a medical negligence claim?

The quick answer to that question would be everyone who had a plausible role in causing your injury – the doctor, the hospital, ambulance driver, pharmacist, medical equipment manufacturer, and so on.

But though a competent lawyer should certainly survey the wider universe of causation, suing everyone could cause a lot of wasted motion practice and a huge bill. Your medical negligence lawsuit should be carefully targeted to reflect the facts of what actually happened to you.

Understanding the legal framework of what happened to you requires exploring the situation in three ways. First of all, it is necessary to establish if you were the victim of negligence and not just bad luck. Secondly, as suggested above, it is necessary to determine who was negligent. Finally, whether you can succeed in your lawsuit will depend on the evidence you can marshal and the defences your opponent can offer.

What is medical negligence?

Not all bad medical results are the result of negligence. The classic elements of a negligence claim are:

  • Your doctor, hospital or other medical professional owed you a duty of care;
  • Your treatment did not meet this standard in some way which caused a breach of that duty;
  • You suffered pain, loss or injury in a foreseeable way; and
  • Your injury or loss was a result of that breach.

This is trickier than it looks. A Good Samaritan who finds you bleeding in the street and applies a tourniquet in a way that fails to stop the bleeding may not have been negligent because he or she is not held to the same standard of care as a doctor treating you in the hospital. A doctor who gives you a mislabelled drug may not be at fault if he or she had no reason to know that the medication was mislabelled. If a patient being treated for a broken wrist suffers a stroke, no liability will attach unless some fault in the treatment of the wrist precipitated the stroke.

A special subcategory of negligence cases deals with the failure of a doctor, hospital or medical device manufacturer to warn patients of the risks inherent in a particular treatment. In these cases, the duty of care includes the duty to warn. A patient cannot give informed consent to treatment without an accurate understanding of risk.

Whose behaviour fell short of the standard of reasonable care?

In some medical negligence cases, everything seems to have gone wrong. The ambulance blew a tire, the hospital was understaffed, the doctor misdiagnosed a condition and the drug was mislabelled. In those situations, the classic advice of “sue everybody” may be appropriate. The recovery will likely be apportioned among all those found to be at fault.

However, in other cases, the question of vicarious liability can be dispositive. Vicarious liability arises when one party can be held liable for another’s negligence, merely as a consequence of a special relationship between the parties. Hospitals may be vicariously liable for the negligent actions of the doctors and other staff they employ. This is significant because hospitals are more likely to have the financial ability to pay large awards than individual doctors.

Evidence and defences

Every case depends on evidence, including the medical records that the plaintiff can present.  Medical negligence cases are unusual in that they also usually require the testimony of an expert about what a professional standard of care is in a particular situation. Doctors and hospitals do not guarantee good outcomes, so this can be the medical professional’s strongest defence.

Section 40 of The Civil Liability Act sets out what is commonly referred to as the “reasonable expert” standard. The standard is what could reasonably be expected of a person claiming to have a given skill. Practically speaking, this means that if a professional acts in a way that is widely accepted in Australia, then that professional appears as a competent individual and as such, the professional is not liable.

Medical negligence claims must also be brought within a relatively short period of time. In NSW, the limit is generally three years from the date of the injury, with certain exceptions. Many claims are lost because of the simple passage of too much time.

Do you have questions about your medical negligence claim? The attorneys at Owen Hodge Lawyers would like to help. Please call us to schedule a consultation at 1800 770 780.