Medical negligence

I have not had your experience. I am extremely sorry to see that you suffered such a tragedy.

Your solicitor is the only one who can actually answer your question.

A few general observations might help you.

Generally, medical negligence cases take a long time to come to trial. You could be talking in terms of a few years or more from initiating a claim to seeing the case come to a hearing.

In a civil action the plaintiff must prove their case. The standard of proof is the balance of probabilities i.e. at least 51% more likely than not. Medical negligence cases are the same.

However,medical negligence cases are a complex type of litigation. Although the standard of proof is as explained above the assembly of the evidence required to reach that standard is a very big task indeed.

Your solicitor has to secure a large amount of information before even being able to advise you if you have a stateable case to make. Hospital records, statements from relevant witnesses, copies of depositions if there was an inquest and then at least one report from a suitable expert witness have to be rounded up. There are numerous other procedural matters that may have to take place as part of the litigation process before the case is ready for trial.

If the hospital and doctors to be sued deny liability that means that they are denying literally everything. This can be hard to understand but it is simply part of the way that the process works. Sometimes there may be admissions of certain facts. The point is that in litigation if anything is denied by defendants then it must be proven by the plaintiff. If defendants deny everything then the plaintiff must prove everything!!

Incidentally, your case does not have to go to trial to finalise matters. The defendants will do their investigations too. If they reach a point whereby they consider that the case against them cannot be defended they may approach your solicitor to negotiate a settlement. This can happen even if they are denying everything.

You should keep in close contact with your solicitor as he/she should be able to tell exactly what stage they are at and how long it is likely to take to reach trial.

Once again, I am so sorry to see that you have been visited by this nightmare but hope that the legal aspects of matters will work out for you and that you will then have one less worry.

Another thing to consider is the level of compensation that you can expect to receive (if successful). Not for one second suggesting that you're attempting to profit ffrom a tragedy but the level of compensation will not reflect the price of a life or anything like it.

Unfortunately, the fact is that compensation (presuming you are successful in your claim) will reflect the injuries that you have suffered. Any compensation award will not include the loss of your child's life other than the compensation for injuries (physical and mental) that you have suffered.

It's harsh but that is the sad reality of the law in relation to med neg in these areas.

I would recommend that you speak to your solicitor about the level of compensation that you can expect to receive in the event that you are successful in your claim.

Sorry to hear this.

Just for your own sake, do you have someone to talk this over with?

OP, sorry for your loss, unfortunately I don't know how long this will take.

Wheelnut wrote: »

I would just point out to you that failure by the staff does not mean negligence.

I just hope the poster above made a typo, for if failure by staff do not equate to negligence, I wonder what does.

You are correct by implying that there is a particular standard of care to be adhered to by medical staff. Your statement on reasonableness earn high points.

NUTLEY BOY wrote: »

Not every failure actually constitutes evidence of negligence. (AKA damnum sine injuria).

Your assertion above, I find difficult to accept. You've mentioned failure, yet you say not all failure constitute negligence. Which failures do not constitute negligence? The maxim damnum sine injuria which you have inserted simply means condemnation without injury; this will hardly fall within a medical negligence case.

However it goes without saying that where a patient worsens, it does not necessarily mean negligence.

Peregrinus wrote: »

The only failure which will constitute negligence is the failure to observe the duty of care. Any failure which cannot be expressed in terms of the failure to observe the duty of care will not constitute negligence.

In particular, "they failed to save the child" does not establish negligence.

You would agree that the duty of care comprises but is not limited to such things as delivering the baby according to particular set standards.

"they failed to save the child" surely this is so dilute a statement in a loss such as this. There are procedures carried out when a baby is being born. Now it is for counsel for the plaintiff to dissect step by step these procedures to argue where a negligence might have occurred. Ultimately it is for the court to rule on any such findings.

I cite damnun sine injuria in the conceptual sense of meaning loss or damage without breach or violation of a legal right.

Whether there is a breach is, as you rightly point out, a matter to be decided by a judge by reference to law and the facts of any particular case.

Although not quite on all fours you might be interested to look at ROE -v- M.O.H. 1954 2 Q.B. 66. Two patients ended up paralysed through contaminated anaesthetic agents. The defendants won on the state of knowledge argument. There was no breach of duty.

NUTLEY BOY wrote: »

Although not quite on all fours you might be interested to look at ROE -v- M.O.H. 1954 2 Q.B. 66. Two patients ended up paralysed through contaminated anaesthetic agents. The defendants won on the state of knowledge argument. There was no breach of duty.

A cursory glance at this case suggests that the risk was not forseeable as it was an unknown risk at the time i.e. 'state of knowledge' as you've said. So if what turns out to be a negligent action was not reasonably forseeable, then it is not negligence.

One could then say that what was not reasonably forseeable and turns out to be negligent is not failure rather it's a mistake - one not forseeable by any reasonable practitioner under the circumstance.

You are entitled to your opinion and have the right to put it forward as forcefully and eloquently as possible.

Wheelnut wrote: »

Assuming you are a legal person, if you take a case and lose it are you negligent?

Pardon me, but if by 'legal person', you mean a solicitor/barrister; losing a case does not necessarily equate to negligence. Consider that a solicitor/barrister by agreeing to represent a client enters into a contract with the latter. Unless there is a serious breach of contract which results to a case being unsuccessful, then there is no negligence.

Where a client feels that her or his solicitor has been negligent, s/he can present the case to another solicitor. Most solicitors would not want to take action against colleagues, but there are some who would.

shy-tall-knight wrote: »

This is slightly muddled. Clear guidelines were laid down by Finlay CJ in Dunne v National Maternity Hospital which were designed in part to deal with the medical profession citing "common practice amongst peers" as a defence for an inherently defective act.
"If a medical practitioner charged with negligence defends his conduct by establishing that he followed a practice which was general, and was approved by colleagues of similar skill, he cannot escape liability if the plaintiff establishes that such practice has inherent defects"

The learned judge added that such defects have to be '...OBVIOUS to any person giving the matter due consideration'. Where it is not obvious, it is not reasonably forseeable and if so, a practitioner can be found not negligent.

Wheelnut wrote: »

It seems you have far higher requirement of the medical profession than you do of the legal profession. Given that the medical profession have not yet found a cure for the common cold, I'm glad I'm not your doctor!

I have no wish to speak otherwise than respectfully to the above poster, but by quoting my texts in parts so as to distort them is evidence of your unlettered mind.

Well, in human nature folly abounds. Sometimes stupidity evades the force of argument by involving itself in its own gloom. This is clearly the case here.