When you visit your doctor you are entitled to expect a degree of competence and a diagnosis which you can trust. It is well documented that the NHS is under budgetary pressures as the UK population continues to grow and age and the cost of treatment continues to rise. For many people, claiming for medical negligence poses the ultimate moral dilemma. Is it morally acceptable to sue the NHS, GP practices and individual consultants where the level of service received has fallen below widely recognised levels?
Different Types Of Medical Negligence
There are many different types of medical negligence which can result in significant compensation claims. These include:
- Misdiagnosis
- Missed diagnosis
- Delayed diagnosis
- Surgical errors
- Failure to transfer a patient to a specialist
- Use of inappropriate medicines
This is just a snapshot of some of the more common medical negligence claims which occur on a regular basis throughout the UK. One of the main problems is that despite advances in medical technology there is still a high degree of dependence upon the human decision-making process. We know that x-rays and scans can indicate an array of different medical conditions but if read incorrectly they can result in misdiagnosis, delayed diagnosis and major problems further down the line.
At this point it is worth reminding ourselves that while employers have a legal duty of care to their employees, medical practitioners also have a legal duty of care to their patients.
Measuring Duty Of Care
We often hear about the legal duty of care that medical practitioners have towards their patients but how is this measured? Is there a basic test which shows whether a medical practitioner acted appropriately or whether indeed the level of care delivered was below standard?
The acid test when measuring whether or not a medical practitioner delivered an acceptable standard of care takes into account how a similarly experienced medical practitioner would have acted in the same situation. In some ways this opens up the protectionism argument which is often directed towards the GMC but in reality if substandard care is being delivered by one or more medical practitioners then it is in the best interests of the overall industry to ensure this is corrected sooner rather than later.
Proving Medical Negligence
Proving medical negligence is in theory more difficult than for example proving negligence of an employer who failed to deliver on their duty of care to their employees. In practice, there have been great strides made in the area of medical investigations, medical examinations and, with hindsight, it can sometimes be fairly easy to prove medical negligence when looking back over case details. It is always far easier to look back with the benefit of hindsight, knowing what happened in the weeks, months and years ahead, but this does not necessarily mean that a doctor would be liable for compensation.
If it can be proven that another medical professional of similar experience would have acted in a similar manner under the same circumstances, it is unlikely that the claimant would receive any compensation. This adds further to the moral dilemma of acting with the benefit of hindsight when in reality it may have been very different at the time. One of the main issues seems to be the ever-growing change in medical trends because historically many different types of cancer were only prevalent in those in their older years. The situation is very different today with younger and younger cancer sufferers which can make it difficult to provide a quick and accurate diagnosis of a specific medical condition.
The Mental And Physical Impact On Doctors And Patients
A report by “Pulse Today” highlighted the significant mental and physical impact on both doctors and patients when investigating potential claims of medical negligence. The study took in 8000 doctors and the results surprised many people.
Impact On Doctors
Doctors who had received complaints against them were found to be at significantly greater risk of anxiety, depression and thoughts of self-harm. This in itself could lead to a self-fulfilling prophecy where confidence in their own ability is reduced leading to further borderline medical mistakes and potential investigations/claims. There is also the stigma of being investigated by the GMC and the fact that everything today is extremely transparent. In many ways doctors can be deemed guilty by the court of public opinion before they are found innocent.
Impact On Patients
The GMC is under extreme pressure to investigate claims of negligence in great detail. We know from feedback by those who have made claims of negligence through the GMC that they are often required to undertake invasive procedures to clarify medical conditions and any mistakes. The idea that claims of negligence will place the onus on doctors to prove their innocence is misconceived to a certain extent. Many patients are unaware of the often invasive procedures they will be asked to undertake to clarify the situation.
Using A Medical Negligence Solicitor
If you believe that you have been the victim of medical negligence, in one of its many potential forms, it is imperative that you collate as much evidence as possible. The vast majority of medical negligence solicitors who have experience in these cases will have access to professionals who would be able to re-examine the claimant and review their situation. Where you have the appropriate legal representation acting on your behalf the case is more likely to be reviewed and resolved one way or another with minimal delay.
Insurance Cover
There is also a common misconception that when suing either a hospital, GP practice or a doctor in their own right, they are expected to pay out compensation from their own resources. The fact is that the NHS is a self-insuring body, covering hospitals and negligence on behalf of staff, while GP practices and doctors are required to have appropriate insurance cover in place to fund any compensation awards.
It would be misleading to suggest that compensation payments do not indirectly impact the financial strength of GP practices or doctors in their own right, because we have seen an increase in medical insurance premiums. However, it is not the role of those who have suffered medical complications as a result of negligence to take into account the cost of this insurance cover. Over the years the UK government has looked to revise the system and offer a greater degree of financial protection to GP practices and doctors but there are legal boundaries.
Mental Trauma And Physical Consequences
Amidst all the concern and moral dilemmas surrounding medical negligence claims it is easy to forget the plight of the patient. We have seen instances where individuals have been told they have life-threatening medical conditions only to find out further down the line that the original diagnosis was incorrect. The mental and physical consequences of such actions on the individual and their immediate family and friends should never be underestimated. A number of individuals have experienced shortened life expectancy as a consequence of misdiagnosis, so where is the moral argument against claiming for compensation in this situation?
While the initial quest for compensation will revolve purely and simply around financial retribution for injuries/medical conditions misdiagnosed or other forms of medical negligence, there is a far greater and more important issue at stake here. Over the years we have seen significant changes in medical procedures as a direct consequence of compensation claims – thereby improving levels of safety for future patients. In many cases the cost of new equipment and putting in place new medical procedures, to avoid future compensation claims, is negligible compared to the potential levels of compensation that would have been paid out without change.
Conclusion
There is and always will be a moral dilemma for many people when considering medical negligence and claiming for compensation. It is worth noting that the courts do not deal in moral dilemmas, they deal in cold hard facts and as tough as it may sound, cases of negligence need to be addressed not just for the claimant but also for future patients.
We know from reports as recent as two years ago that the NHS has put aside in excess of £50 billion to cover potential compensation claims currently in the system. It is only by refocusing the mind of the medical profession, GP practices and individual doctors that we stand any chance of reducing this enormous compensation pot. So, the moral dilemma may not be the stigma attached in pursuing compensation from a medical professional but in allowing malpractice and misdiagnosis to continue, with future patients likely to suffer as a consequence.
