As medicine and science continue to unlock the mysteries of the human body, we are exposed more and more to intervention by doctors, nurses, physiotherapists, dentists, opticians, etc – the list is seemingly endless. There has been much talk about restricting the rights of patients to sue their doctors for negligence and some steps in this direction have already been taken. This seems unfair in light of a recent study that estimated that 90% of negligent events in public hospitals go unreported.
If you think that you have been mistreated by a doctor or other health professional, there are a few things that you need to know before you decide to take action.
1. Do Patients still have the ability to sue for Negligence?
Although there are laws that restrict people’s rights to sue medical treatment providers for negligence, the capacity to sue has not been totally removed. If you can prove that someone has been negligent and that you have suffered damage as a result, then you probably still have a case. The devil, however, is always in the detail.
This is often the most difficult part of medical negligence cases and even lawyers have trouble getting their heads around it sometimes. You may be able to prove that a doctor did the wrong thing, but you also have to prove that what happened next was the result of that wrong thing and you have to prove that it would not have happened if the wrong thing had not been done. Deciding whether or not this is the case involves both factual and legal issues and is sometimes very hard to do. You really need a lawyer who is highly experienced in medical negligence cases to look at this for you.
For example, John Smith went to his local doctor because he had a black spot on his foot and his leg was painful. His doctor sent him to a surgeon who suggested a special procedure using a needle inserted into his leg artery to see whether the veins in John’s foot were blocked. The surgeon botched the procedure and John’s artery was damaged. Several weeks later John’s leg had to be amputated. When John consulted a lawyer and the lawyer investigated his claim, the lawyer found that John’s original foot condition was gangrene and he was always going to have to have his leg amputated, so the surgeon’s negligence in performing the procedure did not leave John worse off than he would otherwise have been and he fails the test of causation.
The biggest hurdle for patients to get over in bringing a claim is a law that sets up a defence for all professionals accused of negligence. It says that if the professional acted in a way that was widely accepted in Australia by that professional’s peers as competent professional practice then the professional is not liable. Note that ‘widely accepted’ does not necessarily mean that the majority of professionals have to agree to the practice.
The law does not prevent an injured person from suing a doctor or other professional. Rather, it is a defence for the professional to use in answer to the claim. The difference is that the professional has to prove that his or her conduct was widely accepted by his or her peers at the time the conduct occurred.
Although the law may prevent some injured people from being successful in their claims, it contains a rider so that if the Court thinks that the peer professional opinion is “irrational” then it won’t let the professional rely on it.
There have been very few cases go through the NSW courts in which this defence has been considered, let alone been the deciding factor in the case. As a consequence, the question of how far the courts will allow professionals to stretch the defence is not yet known.
4. Failure to Warn
It is very common for an injured person to consult a lawyer saying ‘if Dr Smith had told me I would end up like this I would never have agreed to the procedure’. While the saying ‘hindsight is always 20/20’ is often appropriate, there are situations where an injured person could and should sue their doctor or other professional for failing to warn them of significant risks of a procedure.
These cases are known as ‘failure to warn’ cases and can be fraught with danger for both the injured person and their lawyer. To succeed in such a case, you need to prove the following:
1. that the specific outcome that you have, was a known risk of the procedure;
2. that the risk was not insignificant;
3. that the doctor failed to warn you of that risk;
4. that had the doctor warned you of that risk you would not have agreed to the procedure.
Most people are able to get to at least second base with a failure to warn claim. Fewer are able to prove that the doctor simply did not talk to them about that particular risk, although there are cases where a patient’s word has been accepted over a doctor’s insistence that a warning was given. Getting copies of the doctor’s medical notes can help with this element.
More often that not, however, a claim will fail on the fourth element, because Judges have a hard time believing that someone who has gone to a doctor with a problem would not accept the doctor’s recommended solution. People take risks every day – risks involving being in a car, crossing the street, taking pain killers, agreeing to medical procedures. A savvy doctor who is being sued for failing to warn will trawl through your past and look for behaviour that evidences your particular tendency to take risks and will try to use it against you to defeat your claim. A good medical negligence lawyer would have taken you through all that before you decide to sue so that you know whether or not you are likely to win a failure to warn claim.
5. Thresholds of Damage
Under the Civil Liability Act there are a number of caps and thresholds on amounts that can be recovered once you have proved that the Defendant was responsible for your injury.
Loss of wages is capped at three times the Average Weekly Earnings published by the Australian Bureau of Statistics. Most injured people are not caught by this provision as it requires a gross salary of more than $140,000.00. Claims for lost superannuation entitlements are only allowed at the compulsory employer contribution rate (currently 9% of your salary).
An award for pain and suffering is not obtainable unless your injuries reach at least 15% of a most extreme case. There is, however, no set way of measuring what 15% of a most extreme case looks like so every injured person must be individually assessed by the Judge and a percentage decided. The maximum award for pain and suffering is about $442,000.00 and is indexed each year to keep pace with inflation.
In the mid 1990s the concept of a ‘gratuitous care’ award was developed by the High Court. Basically, if you can’t look after yourself or your house (or in some cases your children) because of your injuries, then you can claim the cost of a commercial carer or cleaner even though your family is doing the tasks you can’t do. For a while this was a very lucrative area of damages but now there are laws that place both a threshold and a cap on what you can claim. Put simply, you aren’t entitled to any gratuitous care award unless you need at least 6 hours of assistance per week for at least 6 continuous months and the hourly rate of any award is capped at the Average Weekly Earnings hourly rate. You should be careful, however, not to confuse gratuitous care with commercial care, which is a different claim for damages entirely and which is not the subject of thresholds or caps.
Unfortunately, the way medical professionals go about their jobs has changed little over the years and this means that while the ability of patients to sue their treatment providers has been reduced, the frequency of negligence on the part of those providers has not.
Medical negligence law is highly technical and is full of pitfalls for those who are not familiar with the area. Changes in the law over the last few years and an evolving interpretation of that law by the courts make it more important than ever that anyone who thinks they may have a claim get advice from a lawyer who specialises in the area.
By Katherine Oldfield