All medical practitioners owe a duty of care to their patients. This means that when a patient is provided with medical care, that care must be provided at a level reasonably expected of a competent healthcare professional.
If the patient receives a standard of care which does not meet this standard, and the healthcare professional causes physical or mental harm to their patient that has been directly contributed or caused by the care they provided, the patient may have a clinical negligence claim against the healthcare professional or the hospital that provided the care.
Examples of when the care given may fall below the competent standard include:
• Failing to take a proper medical history;
• Failing to investigate the patient’s symptoms and complaints properly;
• Making a delayed or incorrect diagnosis;
• Failing to refer the patient to a specialist in a timely fashion or at all;
• Providing the wrong treatment;
• Failing to follow up with a patient in relation to clinically significant tests.
Often patients will not know that the care they received was negligent until complications arise or their condition worsens and they are seen by another medical professional who expresses their concern with the treatment previously given.
If a patient suspects they may have a claim, the first step is to review the medical notes for evidence that a duty of care has been breached. If the patient’s concerns and medical notes suggest a breach may have occurred, the next step is to instruct an independent medical expert to provide an opinion as to whether the care provided has fallen below the standard expected. Without a supportive expert report, a patient will not be able to pursue a claim.
Consenting to treatment will not absolve a healthcare provider if the treatment is not to the competent standard, however before a patient can consent to a procedure or any form of medical treatment, they must be fully aware of what they are consenting to. This is known as informed consent.
Assessing whether a patient has given informed consent can be tricky but simply providing the information or getting a signature on a consent form which details the information, may not be enough to evidence proper consent.
Investigations will involve identifying exactly what information was provided. This will be determined by speaking to the patient and also reviewing the medical records for the notes made by the relevant healthcare provider. The notes should provide sufficient information to establish that the healthcare provider has complied with the law that places a duty on the healthcare provider to ensure their patients are not only properly advised of all material risks but they are also advised on all reasonable alternative treatments available to the patient. This does not mean the healthcare provider has to ensure that every possible outcome and every possible treatment is discussed, instead they have to exercise good clinical judgement to inform the patient of all reasonable treatment options by applying the professional practice test. This means a healthcare provider cannot choose to limit the discussion to the treatment that provider considers the most suitable, if there are other reasonable options available to the patient.
In practice this means that in order for a patient’s consent to be valid, the following should be considered:-
• A patient must be accurately told of the material risks of the procedure. If one of those risks materialises and the patient had been told the risk only had a 5% chance of occurring, when in fact it was more like a 30% risk, then the patient may have a claim.
• What is considered a material risk is judged by whether the healthcare provider has explained all risks that an objective reasonable person would attach significance to and also the particular patient would attach significance to. Any risk that a specific patient would find significant, must be disclosed before informed consent can be given.
• In very rare situations where being given information on the material risks would be seriously detrimental to the patient’s health, the Court has ruled that the information can be withheld.
• The patient must be informed of any alternative treatments that are reasonably available and also what would happen if the patient did not receive the treatment.
• Even if the patient can prove the material risks were not shared or not shared accurately and/or reasonable alternative treatments were not shared, the patient will be unable to establish a claim unless the patient can demonstrate they would have opted for a different treatment or course of action, if it had been offered to them.
• A patient must be able to consent freely and have capacity to understand the information given, retain that information, use that information to make a decision and communicate that decision effectively. If it can be proved the patient did not have capacity, there is no valid consent.
How BCR Law can help
Clinical negligence claims can be very complicated and nearly always require a medical expert report to be obtained. It is important you instruct a lawyer who is a specialist in this complex area of law who can guide your through the process.
Our team of expert lawyers will be able to tell you whether you may have a case against your healthcare provider and can also advise you of the process should you wish to pursue a claim. In many cases we are also able to offer a no win, no fee arrangement which allows clients to pursue valid claims without the worry of paying legal fees. If you have any questions on this subject, please get in touch on 760 860.