The investigation and prosecution of medical malpractice claims has become an important part of the portfolio of services offered by many attorneys. Yet it remains a highly specialised field of legal practice, where the law and the medical sciences meet. For this reason, the decision to investigate and ultimately pursue a medical malpractice claim should be informed by carefully considering the advice of an experienced attorney, who ideally devotes at least a substantial part of his/her practice to litigation in the field of medical malpractice.
Why are medical malpractice claims seldom straightforward?
The basic reason that explains why medical malpractice claims are seldom straightforward, lies therein that virtually no medical treatment or surgical procedure can be performed without the possibility that some or other complication may arise. These complications, commonly referred to as “recognised complications”, are known to occur in a percentage of all patients who have undergone the same type of procedure or treatment.
Medical practitioners, by law, are required to obtain the informed consent of a patient before embarking on medical treatment or a surgical procedure. In the case of proposed surgery, the doctor might explain risks that go hand in hand with the administration of general anaesthetic, accidental injury to organs or other parts of the anatomy close to the operation site or the risk that a patient could acquire a wound infection. These are but a few examples of some recognised complications that a doctor may need to discuss or at least mention to a patient when obtaining informed consent for a proposed procedure. It should be noted a doctor is not generally obliged to inform a patient of an extremely rare complication, even if it is considered as a known complication by the medical sciences fraternity.
Quite simply put, recognised complications are adverse events that are known to happen from time to time during medical procedures. Most often they occur in the face of steps and procedures that were designed and put in place to prevent them from happening. Should a complication occur notwithstanding reasonable care, skill and diligence on the part of a healthcare practitioner, it falls to reason that the complication may have been unavoidable and not negligently caused. This is significant because liability does not arise without fault.
A patient giving informed consent to undergo a medical procedure, recognises the risk that a known complication may occur and importantly, assumes or accepts the risk.
In South African law, a presumption of negligence is not readily applied when it comes to medical malpractice litigation. A patient who sets out to recover compensation for the adverse consequences of alleged negligent medical treatment, therefore in most cases carries the burden to prove, on a balance of probabilities, that the medical treatment concerned was performed in a negligent manner and that it resulted in the adverse outcome that lies at the heart of the claim.
There is often a thin line between an adverse outcome that could rightly be dismissed as a recognised complication and substandard medical treatment that could give rise to professional liability. The recognition afforded by the law to known complications is one of the foremost reasons why medical malpractice litigation is a challenging and complex field, where the advice of an experienced and knowledgeable attorney is virtually indispensable.
What needs to be considered before coming to the decision to pursue a claim?
The following are arguably the most important considerations:
- The prospects that the claim will be successful.
- Whether the potential value of the claim would justify the costs of investigating and prosecuting the claim.
- The terms and conditions of the fee agreement between the patient and the attorney who is being entrusted with the handling of the claim.
As is the case in most civil litigation, the unsuccessful litigant may be ordered to pay the legal costs of the successful litigant. An aggrieved patient may therefore end up not only not being compensated, but also having to pay the defendant’s legal costs in addition to his or her own legal costs. It is therefore extremely important to obtain sound and reliable advice concerning the prospects of success.
To assess the prospects of success, it is often necessary to obtain an opinion pertaining to the facts of the case from an independent medical expert. A knowledgeable attorney will be able to identify and involve appropriately qualified medical experts to express an opinion and to identify information such as clinical records that would enable the expert to express a reliable opinion. The attorney should furthermore be able to critically assess the expert opinion and know when further action is called for, such as the input of additional medical experts or aspects that require an advocate’s opinion.
A medical malpractice claim typically involves several role players, including attorneys, advocates and medical expert witnesses. Claims are often strenuously defended. Unfortunately, this results in medical malpractice litigation being a potentially expensive exercise. Even if a claim succeeds, the successful litigant will not recover his or her full legal costs from the losing party. In most cases the portion of the legal costs not recovered from the losing party will be paid from the compensation obtained at the conclusion of the claim, which stresses the importance of obtaining sound advice concerning the estimated potential value of the claim, before the decision is made to proceed.
When providing a preliminary assessment of the potential value of the claim, the attorney should consider the value of the compensation that could be recovered if the claim succeeds and for example, whether this would include loss of earnings and future medical expenses.
What happens once a claim has been instituted?
Once a claim has been instituted, the parties involved in the legal proceedings will often decide to separate the issues. This means that the courts will first and foremost be tasked to decide whether a case of negligence has been established. If so, the proceedings will move to the next phase, namely to determine the amount of the compensation the patient is entitled to recover.
Provided that liability on the part of a healthcare practitioner or hospital has been established, the attorney should conduct a thorough investigation of the value of the claim. The patient would typically be referred for assessments by a variety of medical experts, whose opinions concerning the likely consequences of the complication will be used in support of the amount of compensation that is being claimed. The skill and diligence afforded to the investigation of the value of the claim often makes the difference between a mediocre and an excellent outcome.
What are the benefits of obtaining experienced legal representation?
An experienced attorney will guide and assist a prospective client to make an informed decision on the feasibility of a medical malpractice claim, by providing reliable advice concerning the most important issues, namely:
- the prospects for success, and
- the potential value of the claim
Engaging the services of an experienced attorney places a patient in a favourable position to avoid many of the common pitfalls of medical malpractice litigation, such as:
- pursuing claims that have no or little prospects of success
- being faced with an adverse cost order should a claim be unsuccessful
- unrealistic expectations regarding the potential outcome of a medical malpractice claim
- possible under settlement of claims