Although medical mistakes such as delayed treatment or failure to provide the right treatment are common, doctors negligence claims are notoriously difficult to win.
Proving a doctor’s negligence
The burden of proving negligence is on you the person making a claim. The standard of proof is on a "balance of probabilities.” You must prove that it was more likely than not that the doctor was negligent.
In order to succeed in a negligence claim against a doctor, you need to prove that:
1. The doctor owed you a duty to take care of you and not cause you injury;
2. The doctor breached that duty of care ;
3. That breach of the duty caused you harm; and
4. That you have sustained damage or other losses as a resulted of that harm.
All the elements set out above must be proved on a balance of probabilities.
To prove that your doctor breached the duty to take care, you must show that whatever he or she did or did not do fell below the standard of a reasonably competent doctor in that particular field of medicine.
The test of whether a doctor breached the duty of care owed to a patient is whether he or she has failed to come up to the standard of a reasonable body of other practitioners also skilled in that field.
The term medical negligence applies to all of the doctor’s activities that often result in serious harm or death. These include treatment, diagnosis or advice to patients.
Sometimes negligence can be so obvious. For example, where a doctor has amputated the wrong leg or a dentist has removed the wrong tooth. In these sorts of cases there is a presumption that the doctor or health professional was negligent and it is then up to him or her to prove otherwise.
When should I make a doctor’s negligence claim?
The limitation period for starting a doctor’s negligence claim in court is three years, although this can be extended under certain circumstances.
The time starts to run from the date of the negligence or from the date the patient became aware of certain factors which make up the claim.
The three year time limit does not apply in certain circumstances, such as where the person making a claim is a child or a person who is unable to administer his affairs by reason of mental disorder. In the case of a child, time does not begin to run before his eighteenth birthday. For a person with a mental disorder time begins to run when he or she regains capacity.
It is advisable to see a specialist medical negligence solicitor as soon as possible long before time runs out. The solicitor will then have sufficient time to fully investigate and prepare your claim.
The sooner your claim is investigated, the better chance you have for getting all the necessary records and for those involved to be able to remember accurately the details of what happened.
How long does it take to conclude the claim?
Once a medical negligence claim is issued in court, it can take a considerable time to be concluded. Three to four years for cases issued in the High Court is pretty average.
Balinda and Company have long been champions for those who wish to make doctors negligence claims, because they believe that everyone has a right to full compensation. Even if you sustained pain and suffering as a result of a doctor’s error, you still have the right to have a qualified medical negligence solicitor working on your behalf, so that you receive the compensation you deserve.