When Health Care Professionals Make Mistakes

Posted September 1, 2007
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When an ill or injured person goes to a health care practitioner, (doctor, nurse, physiotherapist, pharmacists, chiropractor or whatever), the individual expects to be healed, not hurt. Sadly, sometimes the intervention of a health care practitioner aggravates the problem rather than helping it.

What does that mean to the unfortunate patient who trusted her health care practitioner to make her better only to discover that she was made worse?

There are no guarantees in life or specifically that every illness, injury or disease can be cured or helped. Health care practitioners cannot guarantee the outcome for any patient. However, the law insists that they act in a way that is consistent with what a similar, competent practitioner would do in the same circumstances. In fact, the test for judging the adequacy of the actions of a health care practitioner are no different than the one used to assess responsibility for a car accident. In the latter, the court asks what the average reasonable driver would have done in the circumstances leading up to an accident. In the former, the question becomes what the average reasonable health care practitioner would have done in the situation presented to him or her by the patient. In either case, if it is decided the person did not meet this standard, he or she will be found to have acted negligently.

In car accidents, judges and juries are able to apply common sense, personal experience and the “Rules of the Road” to determine whether fault is to be found with someone’s driving. Operating a car is something most of us are very familiar with. We do not need post-graduate degrees to distinguish acceptable from unacceptable operation of a motor vehicle. However, this is not the case with most inquiries into the adequacy of health care received by a particular patient. As members of the community, we are not nearly so informed and experienced in the technical and scientific world of health care as we are with driving cars.

In order to understand whether there is legitimate criticism to be levelled at the actions of a health care practitioner, it is absolutely necessary to enlist the help of appropriate and independent health care professionals to critically examine what went on. Only such a practitioner is permitted to level the criticism in court against another practitioner. These consultants are known as “experts”. It is only when this kind of expert is prepared to say that the health care practitioner in question failed to display the standard of competence exhibited by his or her peers in a given situation that there can be any justification for pursuing a claim for damages. Even when negligence is demonstrated, expert opinion must also establish the negligence as the cause of the harm or outcome.

This sort of investigation is absolutely essential. Most health care negligence cases are defended vigorously and huge amounts of time and disbursements are incurred to prosecute them. It is foolhardy to proceed with this kind of litigation without having solid expert support for the case. The importance of this is underscored by the statistical data that is available. In Canada most of us believe that the United States is a hot bed of successful medical negligence litigation. That is a myth. According to one recent U.S. study, out of every one-hundred medical malpractice cases filed: one case actually proceeds to judgment in favour of the plaintiff; six cases result in verdicts for the defence; twenty-two cases are settled by the defendants and seventy-one cases are abandoned in one way or another. In other words, approximately 77% of patients in the United States who commence a lawsuit for negligent health care are unsuccessful. At a recent conference in Florida, it was said that 85% of medical negligence cases that go to trial in that state are lost by the plaintiffs.

Experience in Canada is not dissimilar. The Canadian Medical Protective Association is an umbrella organization that defends Canadian doctors accused of negligence by their patients. The Association’s recent statistics suggest that just over two-thirds of all lawsuits brought against physicians in Canada are unsuccessful.

Patients assume that a bad outcome must mean there was negligence involved in their care. That is simply not so. As was said earlier, health care practitioners cannot guarantee the hoped for result. They can only do their best to try and achieve that. It is a fact of life that some patients simply cannot be treated successfully and may be made worse. All of this can easily happen without medical negligence on anyone’s part.

This underscores the necessity of carefully investigating a potential medical negligence case before even contemplating litigation. Thomson, Rogers is recognized as a leader in the field of medical negligence. This reputation has been achieved by our devotion to ensuring that each and every potential case is thoroughly investigated to see that clients are not dragged through litigation that has little hope of success. Our track record defies all of the statistical data mentioned. The reason for that is simple. We do our homework.

The message in all of this is that the cost of a preliminary investigation is worth its weight in gold. It may seem risky to spend several thousand dollars to determine whether there is a case, but that is a pittance compared to the hundreds of thousands of dollars that could be thrown away pursuing a lawsuit that is destined to fail. Malpractice cases can be won but it requires the kind of knowledge, experience and hard work that Thomson, Rogers brings to every case.

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