Most people hate the thought of undergoing any medical procedure even if it is supposed to be straightforward and low risk. Very often a patient will be asked to sign a consent form just before having the operation blissfully unaware of the potential risks and complications that might occur. So it is particularly shocking for the patient when something goes wrong.
When a simple low risk operative procedure ends up causing serious injury it is easy to see why it would be assumed that liability would automatically be established. However this is not the case. Liability needs to be proved and to do this, a legal test involving three distinct legal hurdles needs to be overcome:
- establishing that there is a legal duty of care between the patient and Trust/doctor
- establishing that the duty of care has been breached through negligent treatment, and
- establishing that the negligence has caused the injury from which the patient now suffers (as opposed to any underlying condition).
In order to overcome these hurdles, evidence in the form of independent expert medical opinion is needed.
An example
We acted for Mrs X who was a 60 year old woman who had a scan to try and find the source of her abdominal pain. There was an incidental finding of a cyst in the uterus and thickening of the endometrium. It was recommended that she undergo a hysteroscopy to investigate the cyst and thickening and take a biopsy if necessary.
She was assured that it was a simple and straightforward procedure with little risk. The consent form just listed infection, bleeding and perforation as frequently occurring risks. There was no discussion of, or provision for, any extra procedures that might become necessary during the procedure.
The procedure was undertaken by a relatively junior member of staff who had failed to understand the risk implications for Mrs X of a retroverted uterus and stenotic cervix. During the procedure, a polyp was found and, in trying to remove the polyp with forceps, the junior doctor perforated the uterus and damaged the bowel.
Poor Mrs X thought she was going into hospital for a routine procedure and instead woke up to find herself in ITU with a bladder and bowel perforation and colostomy. Not surprisingly, she thought liability would be automatically established with no need to prove liability. However, perforation of the uterus or bowel or both can occur following routine procedures and the defendant Trust denied liability and argued that it was just 'bad luck' that she had suffered these injuries.
We therefore obtained the opinion of an expert obstetrician and gynaecologist who was of the view that the injury caused by the perforation was due to poor skill and technique on the part of the doctor and that the standard of care afforded to Mrs X fell below an acceptable level. In the end the defendant accepted the evidence of the expert and liability was eventually admitted and damages awarded.
Constructing a negligence claim
Expert evidence is central to the preparation and conduct of any clinical negligence claim and the role of the expert is crucial. A clinical negligence claim is likely to be won or lost on the quality of the expert opinion. It is therefore vital that the conducting solicitor finds the right expert whose opinion is robust and able to withstand judicial and defendant scrutiny.
Once the right expert is found then the solicitor needs to ensure that the expert is fully briefed on what they are required to do and that their opinion satisfies the legal test for negligence. The expert should be provided with all the relevant medical records and any inquiry or internal investigation records, which have been sorted and indexed (possibly with a medical chronology) and all relevant witness evidence.
As the case progresses towards a trial the expert will become increasingly involved in the case. It is vital to establish at an early stage that the expert is fully equipped both in terms of time and technology to be able to deal with the demands of being an expert witness.
The specialist clinical negligence team at Russell-Cooke have many years of experience in dealing with clinical negligence claims and in so doing have built up an extensive database of specialist expert witnesses. We pride ourselves on appointing the right expert for the case.
If you believe that you have suffered harm due to poor medical treatment then please get in contact with the clinical negligence team on 020 3826 7517 or complete our enquiry form.