What is duty of care?
Your medical provider, whether it is a medical practitioner, dentist, orthopaedic surgeon, neurosurgeon, psychiatrist or psychologist, medical specialist, physiotherapist, chiropractor, etc. owes you a duty of care when providing treatment or advice for any injury or medical condition. Their duty of care is to use reasonable care and skill not to expose you to a reasonably foreseeable risk of injury when providing you with any medical treatment or advice.
Medical providers owe a Duty of Care to use reasonable care and skill, including a duty to warn of risks
Medical providers who provide treatment or medical advice that gives rise to a risk of injury, also have a duty to warn their patients of the risks involved with that treatment in circumstances where:
- The information is reasonably required for the patient to make a fully informed decision as to whether they wish to proceed with that treatment given the risks involved;
- The information is such that the medical provider knows, or ought to know, that the patient would want to be aware of it when making their decision to undertake the treatment or follow the advice.
Breach of Duty of Care by Medical Providers
As with any personal injury claim, to be entitled to injury compensation for treatment that has been provided to you and which you believe has caused you injury, you need to show that there has been a breach of duty of care, and that breach has caused you to suffer the injury.
As indicated above, a medical professional breaches their duty of care to their patient when they fail to exercise reasonable care and skill in providing treatment or advice to a patient, thereby exposing them to a reasonably foreseeable risk of injury. However, a medical provider does not only breach their duty of care by negligently carrying out treatment on a patient, failing to diagnose an injury or medical condition, or prescribing inappropriate treatment and medication. As indicated above, a medical professional can also breach their duty of care if they fail to warn the patient of risks involved with the treatment or advice provided by them.
Medical negligence and lack of care
There are some cases where a patient can undergo treatment by a doctor for an injury the patient already has, and the patient suffers further injury during that treatment. However, not all of these cases will be considered medical negligence. It does not necessarily flow that if a patient suffers further injury from undergoing treatment they automatically have a medical negligence claim. To succeed in a claim for medical negligence, it has to be shown that there has been a lack of care in the provision of that treatment, or failure to warn of the nature of the risks involved in undertaking the treatment. This is because it is accepted that there are certain risks of injury that will always be associated with some medical treatments, and even with due care and skill being exercised by the medical provider, complications can occur. This is particularly relevant in cases where further injury can occur during surgery.
Under the provisions of the Civil Liability Act 2003, a professional is not considered to have breached their duty of care if it is established that they have acted in a way that is widely accepted by a significant number of other respected and competent professionals in their field (unless the practice is irrational or contrary to a written law).
Causation of injury - did the malpractice cause your injury?
Also, it is not enough to establish there has been a breach of duty by your medical provider in their treatment of you - you also need to show that you have sustained injury as a result of that negligent treatment or advice. You need to prove that it was the actual breach of duty that caused your injury.
In medical negligence cases, this can sometimes be problematic. This is because often further injury is sustained whilst the patient is undergoing treatment for a pre-existing injury that is quite debilitating, and the treatment itself can cause increased symptoms. It can sometimes be difficult to differentiate the injury sustained from the pre-existing injury for which treatment was being provided, from the increased injury caused by the treatment. This is not only an issue when looking at causation, but when looking at what damages or compensation you should receive for your injuries in a medical negligence claim.
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If you have been injured as a result of medical negligence or where you feel a duty of care has not been exercised, or in many other situations, you may be entitled to compensation. Even if you think your actions may have contributed to your injury, you may still have a claim well-worth pursuing. Chat, call, email, or let us assess your claim, just press the button below. There is no cost, and no obligation.