Each time you visit a doctor, you put your trust in your medical practitioner. Despite the faith we have in our medical professionals, whether it be a routine dental appointment, an annual physical checkup, or an overnight emergency hospital visit, things can always go wrong.
Sometimes those mistakes can warrant a case for medical negligence or malpractice. There are several key differences between these two categories, and each has its own set of consequences and outcomes.
If you believe you may have been a victim of harm by a medical professional, understanding the differences between these two categories could be critically important. Their distinctions likely determine your overall success in pursuing legal action and having a favourable outcome.
What is Medical Negligence?
At the outset of their careers, doctors and other medical professionals take an oath promising to uphold a sworn duty of care to their patients.
Moreover, that is usually defined by the level and type of care that can be reasonably expected from a professional in their specific field. For example, an orthopaedic surgeon might perform meticulous knee surgery, whereas a dermatologist might accurately and carefully assess and diagnose life-threatening skin cancer.
The term “medical negligence” refers to “an act or omission (failure to act) by a medical professional that deviates from the accepted medical standard of care.” It occurs when a doctor, dentist, nurse, physical therapist, surgeon, or anyone else in the medical field performs their job in a way that causes duress to their patient after a specific interaction.
A common misconception worth debunking is that medical negligence does not always equate to an injury in the patient. Instead, any deviation from the appropriate medical standard of care is technically considered medical negligence.
The intent behind the doctor’s actions in the case of negligence is benign. A doctor could, for example, prescribe a medication without noticing a harmful drug interaction, or could go as far as to puncture an organ accidentally during surgery.
What negligence boils down to is the intent behind the potentially harmful action. When a practitioner lacks any ill will towards the patient, and if there is no intent to harm, the case is likely negligent. The danger comes from the professional’s failure to recognise certain factors or their accidental actions which lead to threatening circumstances for the patient, rather than an intentional will to cause harm.
What is Medical Malpractice?
In more severe cases of medical negligence, such as the aforementioned punctured organ, questions around medical malpractice arise. Severe clinical negligence is often the legal precedent around which medical malpractice cases hinge.
Medical malpractice can occur in many of the same settings and scenarios as negligence. However, the critical difference here is that the medical professionals were aware of the potential consequences of their actions (or lack thereof) and decided to act in that way regardless.
Common examples of malpractice include mistakes during childbirth, where perhaps a patient suffers umbilical cord prolapse and a C-section is not performed immediately. If the doctor decides to take a chance continuing with vaginal delivery and undermine the severity of the situation despite knowing the dangers (and the child dies or suffers brain damage as a result), that is grounds for malpractice.
Relatedly, in extreme cases, if a surgeon comes to the operating table under the influence of drugs or alcohol or is unfit to perform a procedure due to lack of sleep but continues to do so anyway and makes a fatal error, there would be grounds for malpractice.
Malpractice is a severe offence and can often lead to the medical professional losing their right to practice. As such, negligence cases are often much more common.
It’s important to remember that our medical practitioners are people too. Mistakes happen, errors are unavoidable.
However, medical malpractice cases typically centre around questions such as
- what was the appropriate medical standard of care in the situation in question?
- Did the defendant (medical practitioner) adhere to or deviate from these standards?
Compensation and time limits
You must start your legal claim within three years of when the incident happened. In the case of children, a 3-year time frame begins at their 18th birthday.
Compensation for the negligent treatment can include
- compensation for pain and suffering
- compensation for ongoing treatment
- loss of earnings due to injury
- compensation of psychological damage
- reimbursement for home adaptations required.
How to proceed if you think you’re a victim?
There are two recognised panels of specialist clinical negligence solicitors. The charity Action administers one against Medical Accidents, and the Law Society operates the other. Some law firms in the U.K provide “no-win, no-fee” conditional fee schemes. This means that you won’t have to pay your solicitor’s fees unless you win the case.
However, if you do win, some solicitors will take a percentage of the compensation as a success fee. Be sure to ask your solicitor upfront what the pay scheme will be at the outset of your case, as they are very variable based on the problem at hand. Read the small print carefully before you sign!
If you believe you have been a victim of medical negligence, you have both a right and a duty to report it. Despite that, remember that taking legal action can be stressful and incredibly time-consuming.
Be sure you feel psychologically prepared to relive your experience numerous times, which, depending on the circumstance, can be traumatic and upsetting.
If you believe you have been a victim of medical negligence or malpractice, the best way to proceed would be to contact a clinical negligence solicitor.
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