Proving the duty of care relationship

Inherent in all patient and medical provider relationships is a duty of care to provide reasonable care and skill when treating a patient. This duty extends to any actions taken, proposed to be taken or any decisions not to act at all.

This relationship exists between a broad range of medical providers and their patients including but not limited to; doctors, nurses, hospitals, and allied health professionals.

Generally, it is easy to establish that a duty of care relationship exists between medical providers and their patients.

Once the duty of care relationship is established, the next step is to prove the medical provider breached that duty and the standard of care.

Breach of Standard of care

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  A breach of standard of care must be established with evidence.
  Often patients think that simply because they have suffered an injury there has been a breach. However, this is not always the case as some injuries are caused by complications or inherent risks of treatment/surgery which are not the fault of the medical provider and are unavoidable.
  Inherent risks and complications make establishing breach of standard of care very difficult.
  Some examples of a breach of standard of care include: -
• Providing incorrect advice
• Failing to appropriately investigate
• Providing incorrect treatment
• Providing unnecessary treatment
• Providing treatment outside the field of expertise and training
• Failing to diagnose
• Delayed diagnosis
• Failing to warn of risks
• Failure to provide appropriate pre-operative and post-operative care and management

After proving there has been a breach of the standard of care the next step is to prove that the breach caused harm / injury.

Prove the breach caused you harm

Otherwise known as causation, it will need to be established that the breached caused injury and harm that could have been avoided.

Relating the injury and harm back to the breach can often be challenging as there are usually other factors at play which have, at least in part, contributed to the injuries sustained.

This means that any ordinary rehabilitation or healing associated with the procedure / treatment undertaken must be distinguished from any additional injury and harm caused by the breach.

Once the harm / injury resulting from the breach is identified, the loss sustained must be identified in order to claim compensation.

When it comes to putting a value on the loss caused by the breach, the following should be considered: -

• Whether the injuries / loss / damage arising from the breach is ongoing and likely to cause problems in the future
• Whether the breach has caused treatment needs that would otherwise not be required
• The injuries have caused a loss of amenities and capacity
• In NSW whether the breach has caused pain and suffering
• In QLD whether you have sustained an injury severe enough to warrant an ISV assessment

Calculating damage as a result of breach can often be challenging as there are a number of “heads of damage” to consider which include general damages, economic loss, medical treatment, and domestic assistance.

While compensation for injury and loss will not put the injured party back in the position they were in prior to the breach occurring, the compensation received will certainly assist with injury maintenance and healing, and help the injured party find closure and focus on the future.

Therefore, it is very important to properly assess the damages in medical negligence claims so an appropriate amount of compensation can be obtained for the injury sustained.

Find Out More

To find more information on the damages you may be entitled to see out blog article: 4 MOST COMMON DAMAGES CLAIMED IN MEDICAL NEGLIGENCE MATTERS & WHAT THEY MEAN FOR YOU.