The morality of suing a medical professional for Clinical Negligence
By Nilam Patel a city firm fee earner
I often get asked ‘how can you sue doctors for a living?’ ‘Do you not feel guilty?’ ‘Doctors are overworked and sometimes they make mistakes like every human being’. This is my reply.
The perception many people have of Clinical Negligence lawyers can be misguided. It is not possible to take legal action against every clinician who makes an error in the process of treating and advising patients. There are strict legal criteria to be satisfied before a claim can be brought, with three requirements:-
1. Breach of Duty of Care
The first test is whether a reasonable body of practitioners would act in the manner that the accused doctor did. If so, then the actions of the doctor cannot be found to be negligent and he cannot be sued. It follows then that the stringent test is this, if the doctor is unable to find a reasonable body of practitioners who would act in the way that he did, under the same circumstances, then it seems quite obvious that the doctor acted negligently.
As lawyers, we are not in a position to judge the actions of a medical professional and so it is necessary to instruct an expert qualified in the relevant speciality. These experts cover the full range of medical treatment, including breast surgeons, paediatricians, obstetricians and cardiologists. If this expert is able to advise that no reasonable body of clinicians, in a particular medical area, would have acted, as was, then we may have passed the first hurdle.
A widely publicised example of this is the case of young Maisha Najeeb where the treating doctor negligently injected a syringe containing glue into her brain instead of a syringe containing harmless dye, leaving Maisha severely brain damaged. Here, the doctor acted wrongly by negligently using the wrong syringe.
In other cases the doctor will fail to do something (an act of omission).
For instance, in Jennifer’s case, which can be read here, several smear test results were reported incorrectly by a pathologist. These results showed abnormalities which should have been investigated further. The failure to investigate led to a failure to diagnose cervical cancer. Sadly Jennifer died on 21 January 2013. The cause of her death was metastatic cervical cancer. If she had received appropriate treatment earlier, the cancer would probably never have developed and Jennifer would be alive and well today.
There are many examples of doctors failing to perform an action which a reasonable body of practitioners would have performed:-
- Not ordering the correct type of scan or blood test which would have revealed an illness.
- Not administering the correct antibiotics to treat infections.
- Failing to diagnose underlying conditions which could be treated.
Sadly, we conduct a number of birth injury cases where there have been failures by the obstetrician or midwife before, during and after labour. For example, in some cases there are clear signs of fetal distress which should have been picked up if the CTG trace had been correctly interpreted. Failures to do so result in the baby being starved of oxygen and suffering neurological damage at birth. Many of these babies suffer from cerebral palsy and epilepsy for the rest of their lives. They require multidisciplinary rehabilitation and their life expectancy is often significantly reduced.
The second limb required to establish a claim is the assessment of whether the negligent act caused or materially contributed to the injury suffered by the Claimant. If the doctor acted negligently, but this did not cause any injury to the Claimant then the Claimant has no claim. So, in Jennifer’s case, if earlier diagnosis of the cancer would have led to the same treatment options as were available when the diagnosis was eventually made, then the negligence did not cause any damage to the Claimant. However, Jennifer could have had a hysterectomy which would have led to a complete cure. Her death was avoidable. Other patients may have had the opportunity to have a risk reducing surgery i.e. a mastectomy or oophorectomy.
Also, if the injury would have occurred anyway regardless of the negligence then again there is no case. So for example, if a surgeon negligently cuts off a Claimant’s toe but his leg was to be amputated anyway, the Claimant has not suffered from any additional damage as he would have lost the toe anyway.
3. Compensation – Valuing the Claim
Once both breach of duty and causation have been established, the next point to consider is the value of the claim. The media often reports multimillion pound compensation awards. Defendants would not be making these payments unless we could justify the sums claimed.
The way the value of the claim is assessed is by understanding, firstly, what injury would not have occurred but for the negligence. Secondly, what expenses would not have been incurred but for the negligence. These limbs are categorised as General Damages and Special Damages, respectively.
(i). General Damages
An award of General Damages aims to compensate the Claimant’s ‘Pain Suffering and Loss of Amenity’ (PSLA). Nowadays awards are standardised across the board by Judicial College Guidelines. Although, no case is the same and we use our experience to obtain the highest awards. However, often these sums are very low in comparison to the injury suffered.
(ii). Special Damages
Prior to receiving the compensation, the Claimant may have incurred expenses caused by the negligence.
(iii) Future Loss
When valuing a claim we involve experts from many disciplines such as physiotherapists, occupational therapists, accommodation experts, case managers, support workers, and psychologists to name a few. We quantify the claim with the assistance of experts so we can consider the future needs of the injured Claimant from their perspective.
In many cases, a Claimant will no longer be able to work and so a claim will be made for loss of earnings. So, for example, but for the negligence and the injury, the Claimant would have been employed until the age of retirement and now suffers from loss of earnings as they are unable to work.
In cases of physical injury the Claimant may require adapted accommodation which allows for room to manoeuvre with a wheelchair or to set up a hoist. Their current home may require adaptations to make everything accessible on the ground floor. The purpose is to put the Claimant in the position he or she would have been in but for the negligence, but in reality, this amounts to only getting the care and support that the person needs, as often they are unable to have the life they would have had if they had not been injured.
In addition to this, the Claimant will require the input of various clinicians and therapists throughout different stages of their life; neurologists, speech and language therapists, and dieticians are a few examples. The Claimant may require a full time career and support worker if it is not safe to leave them alone. What many people fail to understand is that brain injured Claimants are more vulnerable, even whilst in their own home. They may forget to turn the gas off or may allow a stranger in their home or they may not know how to react in an emergency situation. For these reasons, many of our brain injured Claimants need someone with them at all times. The cost of paying for these carers every day for the rest of the Claimant’s life is usually a huge sum of the compensation.
Whilst considering all these costs, it must be remembered that had the clinician acted properly this would have not been required by the Claimant. The negligent act of the doctor has placed the Claimant and their family in a position which they would not have otherwise been in.
For more information or further examples of medical negligence, visit Fieldfisher Solicitors case studies pages, there you will find multiple examples of medical negligence and the results of clinical errors that could have been avoided.
Nilam Patel, Fee Earner