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Doctors and other medical practitioners usually provide a high level of service to their patients. Unfortunately, on occasion mistakes do happen and in these situations patients will be quite emotional and upset. The potential risks involved in medical treatment may be forgotten; however the patient will be entitled to an explanation.
A case of clinical negligence is when it can be proven by the patient that the treatment provided by the doctor or other medical practitioner was sub-standard and this resulted in a mental or physical injury. Various procedures have been reported to have gone wrong over the years, such as objects being left behind in the patient and non-communication between the patient and doctor on certain risks that could be involved in the treatment.
The government figures have indicated that, around two people a week find surgeons have left behind foreign objects such as clips and screws, and surgical swabs. In the past year alone, the highest payouts included 115,000 to a person who had the tip of a needle left inside them, 75,000 to a patient who later found a surgical clip, and 60,000 to someone who still had 'packaging material' inside them after an operation.
The types of medical practitioners that can be held liable include:
privately funded hospitals
privately funded health practitioners
privately funded health practitioners
all NHS medical staff and hospitals
GP's
What is the Duty of care?
In order for the patient to bring a successful claim, the patient will need to demonstrate that the medical practitioner provided care that fell below the standard required of any responsible body of other practitioners in the same field. Essentially the main question raised would be: Can it be proved that their medical peers would support the same method of treatment?
It is expected that the medical practitioner should take personal accountability for keeping up to date with current developments in healthcare, and that this will be questioned when an error is made. The assessments will be made in accordance with the current medical trends prevailing at the time of the Incident. It is essential that in order for the patient's claim to be successful, it will have to be shown that the medical practitioner in charge of the patient contributed substantially to the patient's injury. Quite often medical cases can be complex, with the patient suffering from a variety of different illnesses. Therefore it will need to be proven that the damage caused by the medical practitioner was separate to the patient's underlying condition.
In order for the claim to be a success, the patient will have to prove that it was the actual error on the medical practitioner's part that made a substantial contribution to the injury or damage suffered. It will also need to be shown that the medical practitioner's error was a separate incident to the patient's underlying condition.
In the case of was Bolam v Friern Hospital Management Committee it was stated that 'the test as to whether there has been negligence or notis the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art'.
The medical practitioner concerned should be able to escape liability, providing they can find expert medical witnesses that would support the same method of treating a patient, as has been outlined in the Bolam case. Quite often, particularly in highly complex cases, there can be more than one way to treat a patient and depending on the situation, either way could be acceptable. Nevertheless, once a recognised body of medical practice has shown that they would support the same method of treatment, it is unlikely that the doctor will be found in breach of his duty of care.
Whilst a doctor may have a defence, it has now been estimated that clinical negligence payouts by the NHS are expected to rise by 80% next year. With the average victim pocketing 17,900 the mistakes have cost the NHS a total of 9 million over the past five years, with payouts made to more than 550 patients.
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