CLAIMING MEDICAL NEGLIGENCE: A GUIDE

01/09/2010 | Practice field: Torts & Insurance

G., who lives in southern part of Israel, was supposed to go through a simple abdominal operation. During the surgery, a medical instrument used for searing vessels was forgotten upon her leg, and so it happened to create a huge burn within the leg.

One should note that the surgeons felt something was wrong only after scenting the smell of burned flesh, but it was too late. A huge scar was left upon G's leg – for life!

G's story is one of many that connected to medical negligence. The specific revolting circumstance here is that one cannot put to question the case of medical negligence: a healthy person goes through an abdominal operation and wakes up with her leg injured. And there is no connection between the operation and the invalidity she now suffers from.

It is important to know that not every case of death or injury during surgery indicates necessarily negligence by the medical staff. Medicine as a profession deals naturally with diseases and injuries which one cannot always predict their evolving.

The magic formula for deterring if a case indicates medical negligence has not yet been found, and lawyers and courts still find themselves in indecision in every case. As mentioned above, not every unsuccessful medical care indicates clearly and beyond all doubt a case of medical negligence. To persuade the court that a case does indicate medical negligence and to bring it to decide for damages for the injured we must prove that:

1. the medical staff's treatment was far off the usual standard.

2. a harm was made to the patient.

3. the damage was made by the staff's treatment.

The following had been proved as medical negligence:

· Physician who neglected a medical instrument inside the patient's body.

· Physician who operated at the wrong organ.

· Unlikely mistake made in diagnose.

· A mistake made in the writing of a prescription.

Any physician and/or a member of the medical staff must undertake the obligatory of caution with their patients. When a physician was not acting skillfully and cautiously, as one should likely act skillfully and cautiously according to his or her practice, one can indicate patient's negligence. And when this negligence caused injuries and damage one can sue compensation for these damages.

The medical law defines the rights of the injured in laws and acts, mainly the civil wrong ordinance (new formula), the patients rights act, national health law act and the basic law of the individual's dignity and liberty.

One should consider that lack of 'damage component' in the claim for medical negligence might be very significant when proving negligence. This component actually indicates the amount of compensation the applicant will get.

The Israeli law has not yet recognized the necessity for punitive damages that instruct punishing the injurer for jeopardizing the injured. That is why when no damage has been proven the amount of compensation for the applicant should be quite low, composed only of grief caused from negligence. Bringing in account that claims dealing with medical negligence involve expenses in large scale – suing can turn out to be not worthwhile.

In case one suspects medical negligence we recommend:

Submitting a civil action, which is the major course for dealing medical negligence cases.

Most claims of medical negligence take place in court of civil law, and the damages sentenced, if sentenced at all, are quite of high amount.

Making the lawsuit successful we should prove that the physician conducted an unapt course of action that caused damage. In order to do so we use medical opinion, which without it the chances of winning are very low.

When one feels that the treatment is wrong, one should:

1. collect all documentary connected the treatment: clinic files, ER files, operation report, hospitalization files, documentation from labs, x-rays etc.

2. consult a lawyer with expertise in the field who should give his opinion and deter whether it is a case of medical negligence or not.

3. at this stage the lawyer gives all documentation to a physician whose expertise is in the field, and the latter writes a medical opinion.

4. the moment the opinion arrives a lawsuit is submitted to the empowered court of law.

Note: Medical negligence is one of the most implacable to be proved because of the essential of a medical opinion taken from an expertise, that indicates negligence evident, and because of the fact that we deal mostly with operations and illnesses that in their essence bear risks.

The high court of justice has remised lately the burden of proof carried by the claimant for medical negligence. It set in a precedent verdict that in certain cases the request for proving negligence in the balance of probabilities (as standardized in civil law – 50%) should be soften. When the act that caused negligence cannot be proven, the rate of burden of proof may be lower than 50%.

Beyond submitting a claim for medical negligence to the court of law, the patient or the members of his family can act in two other ways:

1. by going to the police and submit a complaint (the criminal case)

The criminal case is the strictest one. Acting by it is conducted in the most severe cases, usually a negligence causing patient's death. But cases in which physicians are convicted are rare. The enquiry is extremely complicated and the route to conviction is quite long.

2. by complaining to the ministry of health (the disciplinary case).

The ministry of health is responsible, among other things, to the medical ethics, probing unethical conduct by physicians. Any complaint for medical negligence or for violating patient's rights is submitted to the public complaints commissioner who summons an inquiry commission. This commission is empowered, inter alia, to deplore the physician of his license.

To sum up, one should take into consideration that those who profess in medical care stand under lots of pressure, fatigue, lack of resources and daily struggle in saving lives. Their burdensome is almost infinite and one should bless their deeds.

But a slight careless mistake might cause a disaster, the patient's daily life might be extremely damaged and someone would have to pay the consequences. Claiming medical negligence conducts also as a 'control device' over the staff's treatment by that it can be used to discourage damages to patients. One should also remember that the medical staff's professional liability is insured. This insurance is intended to deal with these kinds of situations.

One should also take into consideration that the procedure of claiming medical negligence is a complex one and that its duration is rather long.

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