What is duty of care?
When you visit a medical provider for treatment or advice for any injury or medical condition they owe you a duty of care. A medical provider can be a doctor, dentist, orthopaedic surgeon, neurosurgeon, psychiatrist or psychologist, medical specialist, physiotherapist, chiropractor, etc.
Their duty of care is to use reasonable care and skill, so as not to expose you to a reasonably foreseeable risk of injury when providing you with any medical treatment or advice. We’ve pulled together some of the most common questions and answers below, but you’re welcome to contact us if you’d prefer to get a free claim assessment.
Frequently Asked Questions About Duty Of Care
Do Medical providers have a duty to warn of risks?
Yes. 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, so you can make a fully informed decision whether they wish to proceed with treatment given 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.
What about medical negligence and lack of care for pre-existing injuries
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.
Further Injuries From Undergoing Treatment Doesn't Automatically Mean I Have A Medical Negligence Claim?
It does not necessarily follow 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.
Are There Certain Risks Of Injury That Will Always Be Associated With Some Medical Treatments?
Yes, this is because it is accepted that there are certain risks of injury that will always be associated with some medical treatments.
Even with the best 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. Find out more about medical negligence claims.
How Does Duty Of Care Apply With The Civil Liability Act 2003
Under the provisions of the Civil Liability Act 2003, a professional is not considered to have breached their duty of care if:
It's 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
What Is Causation Of Injury?
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. This can mean the treatment itself can cause increased symptoms.
How Do I Differentiate The Injury I Sustained From The Pre-existing Injury
It can sometimes be very difficult to differentiate the injury sustained from the pre-existing injury for which treatment was being provided.
Especially 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. Best thing to do is contact us and get a free claim assessment and we can advise more.
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