Medical negligence: Finding the missing piece of the puzzle

In a medical negligence claim, there are three pieces of the ‘puzzle’ that your lawyer must find before making, and succeeding in, a legal claim of compensation. These are:

• that the treatment provider owed you a duty of care to take reasonable care in providing their treatment (duty of care);
• that the treatment provider breached that duty of care by failing to take reasonable care of you and/or the treatment provided was unreasonable (breach of duty of care); and
• that the breach of the duty by the treatment provider caused you to suffer an injury or loss (causation).

Importantly, in Victoria there is an additional piece to be found: the treatment must have caused a permanent injury (permanent injury), and that permanent injury meets a certain threshold. If the threshold is not met, a claim for pain and suffering damages cannot be brought.

In most medical negligence claims, establishing a duty of care is not a contentious issue. However, it is usually establishing there was a breach of duty of care and/or causation which requires extensive investigation and input from experts.

In some cases, even if there is strong evidence supporting that there was a breach of the duty of care, if your lawyer cannot establish causation or permanent injury a medical negligence claim for pain and suffering damages is unlikely to be successful.

Case study

It was recently reported that a surgeon in the Albury-Wodonga region had performed colonoscopies on nearly 2,000 patients and did not carry out the procedure properly.

Safer Care Victoria investigated the situation and released a statement advising that an independent review found that the colonoscopies were not performed to the standard of care reasonably expected. In other words, the surgeon who performed the colonoscopies breached their duty of care to provide reasonable treatment to their patients (negligent treatment).

On the face of it, it is likely that the first two pieces of the puzzle, duty of care and breach of duty of care, would be found easily. The last pieces needed are causation (did the breach cause an injury?) and, in Victoria, permanent injury (did the breach cause a permanent injury?).

In other words, a lawyer representing patients who underwent colonoscopy surgery by this surgeon needs to find that the patient has a permanent injury resulting from the surgeon’s negligent medical treatment, and that these injuries could have been avoided had the colonoscopy been performed to a reasonable standard.

Possible permanent injuries that are likely arise in cases of negligent treatment such as these would be:

• undiagnosed and/or a delayed diagnosis of cancer;
• a physical injury arising as a result of the repeat colonoscopy; or
• a psychiatric injury due to finding out about the negligent treatment.

Unless it can be shown that you have suffered one of the above or another permanent injury because of the negligent treatment, you will not be able to establish that the negligent treatment caused (causation) a permanent injury. Unfortunately, simply needing a repeat colonoscopy would not suffice as a permanent injury.

Without causation and permanent injury, the puzzle cannot be complete in Victoria, and a medical negligence claim for pain and suffering damages will likely not succeed.

Brave Legal has considerable experience and expertise in investigating, preparing and resolving medical negligence claims. We are available to discuss a potential medical malpractice claim if you have been impacted by the treatment provided by the surgeon in the Albury-Wodonga region.