Medical negligence or honest mistake: How to spot the signs

Published 02 Nov 2018

As much as we'd like to think otherwise, no one is perfect - even medical professionals. Despite extensive training, doctors and nurses sometimes make errors in diagnosis and treatment.

But when does an honest mistake become medical negligence? And what's the difference?

An honest mistake explained

When determining the difference between an honest mistake and medical negligence, people must ask: "Would a reasonable person have done the same?"

If the answer is yes, it's likely it was a genuine mistake and not grounds for negligence. Under the Civil Liability Act 2002 (NSW), a plaintiff may have trouble claiming for medical negligence if the court determines that a reasonable person in the individual's position would have taken the same precautions. This could refer to prescription and diagnosis of numerous ailments.

For example, medical professionals cannot foresee an adverse reaction to medication or a complication during surgery. In a court of law, the medical professional (the defendant) could fight the claim by showing that other doctors or nurses would have acted as they did in the situation.

When does a mistake become negligent behaviour?

An honest mistake becomes grounds for medical negligence when a healthcare professional fails to provide patients with an acceptable standard of care. In order for a plaintiff to prove a doctor or nurse was negligent, they must prove:

  • The defendant owed them a duty of care.
  • The defendant then breached this duty of care. 
  • The defendant was the one who caused the damage.

Additionally, under the Act, a person is deemed negligent if:

  • They failed to take precautions against the risk of harm if the chance was foreseeable.
  • The risk was significant.
  • A reasonable position would have taken precautions to prevent the error.

Examples of medical negligence include - but are not limited to:

  • Failure to inform of foreseeable risks: Medical professionals must inform patients of all issues that could potentially occur as a result of treatment or surgery. 
  • Problems with diagnosis: An injured party has grounds for compensation if a medical professional's diagnosis was incorrect, delayed or nonexistent.
  • Surgical errors: While there is a degree of risk associated with surgery, if a patient becomes worse as a result of negligent or their recovery is impaired by such, there is grounds for negligence.

In any case where a medical error occurred, it's important to enlist the help of expert lawyers. If you're unsure if you have sufficient ground to submit a claim for medical negligence, get in touch with the team at Malouf Solicitors today to see how we can help. 

Please call us on 02 8833 2000 to speak with a lawyer

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