Who is to Blame when Bad Turns to Worse
Who is responsible when you have been injured, then suffered from poor treatment outcomes? The RMB Compensation Division explains:
Who bears the responsibility for someone who is injured as a result of some act of negligence, but then has further aggravation from treatment or a poor result from surgery?
Take, for example, a person who has fallen on a wet floor in a shopping centre.
Let’s say the shopping centre is aware of the spill but fails to clean it up. The injured person sustains a serious lower back injury and is recommended surgery. That is performed but the injured person’s symptoms are worse after surgery.
Who is responsible for the worsened condition the injured person now finds themselves in?
The similar scenario was raised in the High Court in 1985 in the matter of Mahony v Kruschic.
The Court ruled that if someone is injured as a result of another’s negligence, it is foreseeable and likely that the injured party will seek medical treatment for their injuries. There is inherently some risk in medical treatment, particularly where surgery is required.
The Court ruled the original wrongdoer, in our case the shopping centre, will be liable for the foreseeable consequences of their negligence. That would generally include where a person acts reasonably in obtaining medical treatment but has a poor result from the treatment.
But what if the surgeon has provided a poor level of care in providing the surgery? In such cases the High Court ruled it will be a question of fact and degree as to who is responsible. The court ruled some degree of medical negligence in the treatment of an injury may well be the reasonably foreseeable result of an act of negligence.
But how much negligence is tolerable?
The High Court did say where the medical treatment has been “inexcusably bad” or “completely outside the bounds of what any reputable medical practitioner might provide” then the medical practitioner will be liable for that further damage they cause.
One of the many important points this case raises is that where an injury has occurred because of one person’s negligence and the injury is made worse by medical treatment, ordinarily the responsibility will stay with the person who caused the injury initially – unless there is some significant error by the medical practitioner.
In many cases this will save the injured party from having to sue both the first wrongdoer and the medical practitioner.