Medical negligence law is a challenging and intricate area that has unique legal standards and rules of evidence that set it apart from other types of negligence cases. The RMB Compensation Division explains.
I recently acted for a client who suffered injury and circumstances which gave me cause to consider the case of Mahony v J. Kruschich (Demolitions) Pty Ltd.
My client initially sough treatment from an allied health professional for neck and shoulder pain. However, following the intervention, her condition significantly worsened resulting in severe pain that required hospitalisation and ultimately, surgery. Despite the surgery, she continued to experience ongoing pain in her neck, as well as new symptoms affecting her other arm.
Proceedings were commenced against the allied health professionals alleging negligence and claiming compensation.
During the proceedings, hospital admission records were obtained, revealing that the the surgeon had operated on the wrong side of the Plaintiff’s neck. Steps were therefore taken to join the surgeon to the proceedings.
It was alleged that in addition to negligence, the surgeon committed trespass to the person and battery by performing surgery on the incorrect side of the Plaintiff’s body without valid consent.
Where a partys negligent act or omission causes personal injury, entitlement to damages is limited to the injury and the foreseeable consequences of the injury. A live issue in my client’s case was whether the negligence of the surgeon was a reasonably foreseeable consequence of the negligence of the allied health professional.
In Mahony’s case, the Court considered and determined that, provided it was reasonable for a Plaintiff to seek treatment, there is a foreseeable risk that the treatment might be given negligently. However, the original injury does not carry a foreseeable risk of treatment that is “inexcusably bad” or “completely outside the bounds of what any reputable medical practitioner might prescribe”. In my client’s case, it could well be argued that the treatment was completely outside the bounds of that which would be provided by a reputable medical practitioner.
There was an added complication because it was necessary to consider whether the incorrect surgery was a result of the original injury or whether the chain of causation had been broken by a new intervening act, being the negligence of the surgeon. Would the injury by the surgeon have occurred but for the injury by the allied health professional?
In cases involving multiple Defendants, the Plaintiff’s total damages do not increase simply because more than one party is responsible for the harm. The overall loss remains the same. However, determining the extent of each Defendants contribution can significantly delay and complicate the compensation process.
While a Plaintiff’s entitlement to compensation remains unchanged, the involvement of multiple liable parties often leads to a more protracted and complex resolution.
At RMB Lawyers, our compensation team has many decades of combined experience and can assist and advise you in relation to pursuing such complex and difficult medical negligence cases. You can contact us by by phone or our 'Ask a Question' tool on our website.