Medical negligence can occur in various ways, such as a misdiagnosis, incorrect treatment or surgical mistakes. Whilst health care professionals have the duty to care for their patients, medical negligence can cause injury, or worsen an existing condition. One of the most prominent sources of duties and obligations of professionals has been the common law. However, in recent decades those duties have been supplemented by statutory or other regulations and professional standards such as the code of medical professional ethics. It is important to remember that non-compliance with such regulations or standards does not necessarily lead to a finding of medical negligence. If you are concerned about, or have been a victim of medical negligence, it is recommended that you consult your lawyer to protect your legal rights and ensure you receive proper legal advice.
As mentioned in a previous article of this series here, the most important step is obtaining an expert opinion. However, in this occasion an expert medical opinion of the particular specialisation as the defendant medical practitioner will also be required. The medical expert will need to be furnished with all medical reports of the patient. Depending on the facts of the case more than one medical expert may be appropriate. The experts will have to be able to give evidence and testify as regards their findings before the Court. The lawyers will then study the medical opinion in order to assess liability and causation for the validity of the claim.
Establishing Medical Negligence
The tort of negligence is considered complete when (1) the defendant owes a duty of care to the claimant (2) the defendant acts or fails to act in such a way as to break that duty of care and (3) the claimant suffers damage as a consequence of the breach.
The standard of competence expected from a medical practitioner is that of the ordinary skill and ability to be expected by a medical practitioner professing the particular specialisation and holding the same post as the defendant. In order for this standard to be determined, expert evidence will have to be provided for the determination of proper practice followed in that specific field. The medical practitioner need not possess the highest expert skill.
Deviation from proper practice is not necessarily evidence of negligence. To be so it must be proved that:
Nevertheless, the Court will have the final say in determining what constitutes reasonable and responsible practice as well as determining whether the medical practitioner was indeed negligent in the exercise of his duties. It is often not enough that expert evidence indicates that a responsible body of medical opinion would not have acted in the same way. This has to also be reasonable and accepted by the Court as such. The reason being that a profession may collectively adopt too tolerant standards in some aspects of its work. The Court must not be bound by those standards and on this basis will not acquit practitioners of their negligence simply because they have complied with those tolerant standards. This principle has also been confirmed in a precedence setting Cypriot case that our firm has successfully litigated to the Supreme Court.
Medical negligence will usually be found in one of the three main stages of medical care. These are:
Medical negligence may come in the form of a delayed diagnosis, a failure to diagnose, a failure to treat, surgical negligence, medication error, information withholding or provision of informed consent.
Taking the example of proper diagnosis, it is important to note that a failure to diagnose does not relate to making the correct diagnosis every time. This would constitute an enormous pressure on the doctors’ shoulders. Instead, a failure to diagnose often relates to a failure to realise, by using all available diagnostic tools, that the patient is indeed dealing with a difficult situation which would be obvious to the reasonably competent doctor of that specialisation. In general, errors of judgment are often the epitome of professional negligence. However, an error in itself is not negligence. The issue in all cases is whether the error in question evidenced a failure of professional competence.
Res Ipsa Loquitor
In a civil case, the burden to prove the case rests ordinarily on the claimant’s shoulders. Nonetheless, when the claimant is unable to provide evidence for the alleged negligence, he is allowed to use the evidential rule of ‘res ipsa loquitur’ (the thing speaks for itself) and relocate this burden to the defendant provided that he satisfies the conditions of Article 55 of the Civil Wrongs Law, Cap 148 and proves the result (i.e., the damage) of the defendant’s actions. The defendant will now have to prove that he was not negligent in his actions. Our firm successfully represented the claimant in another pivotal medical negligence case which dealt with the application of the principle of res ipsa loquitur.
Risks and Complications
Patients often complain about the outcomes of their surgical operations. Without taking away any credibility of any patient complaints it is important to understand that a risk or a known complication that is realised does not translate into medical negligence. As so eloquently Lord Denning puts it:
“But in a hospital, when a person who is ill goes in for treatment, there is always some risk, no matter what care is used. Every surgical operation involves risks. It would be wrong, and, indeed, bad law, to say that simply because a misadventure or mishap occurred, the hospital and the doctors are thereby liable. It would be disastrous to the community if it were so. It would mean that a doctor examining a patient, or a surgeon operating at a table, instead of getting on with his work, would be for ever looking over his shoulder to see if someone was coming up with a dagger - for an action for negligence against a doctor is for him like unto a dagger. His professional reputation is as dear to him as his body, perhaps more so, and an action for negligence can wound his reputation as severely as a dagger can his body.”
Below we set examples of the most recent lower and higher damages awards of the spectrum awarded by Cyprus courts. The examples include the following:
Our firm deals with and litigates medical malpractice cases on a regular basis. Contact us for a no-obligation consultation of your case. Our expert lawyers are available to assist you.
The content of this article is valid as at the date of its first publication. It is intended to provide a general guide to the subject matter and does not constitute legal advice. We recommend that you seek professional advice on your specific matter before acting on any information provided. For further information or advice, please contact Mr Agis Charalambous, Associate at the litigation department of our firm at telephone 22447777 or email agis.charalambous@kyprianou.com
