So many of my clients say to me that if their treating health care professional had said sorry or just apologised to them for what had gone wrong, they wouldn’t have been compelled to look for answers or seek independent legal advice.
For many people, knowing what went wrong with their medical treatment and having a simple apology is all they need. When health care providers fail or refuse to acknowledge that something has gone wrong with the patient’s medical treatment, patients can feel betrayed, angry and look for answers elsewhere.
Saying “I’m sorry” doesn’t necessarily mean that a person is accepting blame or admitting that what went wrong was due to a lack of skill or a failure to provide an appropriate level of care. Acknowledging that something went wrong and then trying to assist a patient to recover from their poor outcome does not automatically equate to a successful negligence claim.
In order to bring a successful medical negligence claim, the patient must establish each of the following elements:
Duty of care
Firstly, it must be shown that the doctor/ health care provider owed the patient a duty of care. This is not controversial as the doctor/ patient relationship is among an established category of situations in which a duty of care has long been recognised to exist.
Breach of duty
It must also be proved that the doctor/ health care provider breached the duty of care that was owed to the patient. Determining breach of duty requires expert evidence that the health care provider failed to exercise reasonable care and skill. The health care provider will avoid liability if he/ she can establish that they acted in a manner that, at the time the service was provided, was widely accepted in Australia by peer professional opinion as competent professional practice.
Causation
The next step is to determine whether the alleged breach can be said to have caused or materially contributed to the harm the patient suffered. It will be necessary to show that had the health care provider provided the patient with adequate care, it is more likely than not that the patient would not have suffered harm.
This step is crucial and often the most difficult step in establishing a claim in medical negligence.
Damage
The purpose of the law of negligence is to put a person who has suffered injury as a result of someone else’s negligence back in the position they would have been, if there had been no negligence. The only means the law has for doing this is financial compensation. Damages or compensation may be payable for such things as pain and suffering, medical expenses, loss of income and care.
The Uniform Civil Procedure Rules (r31.36) require that the elements of breach of duty, causation and damage be supported by expert evidence. Therefore, without supportive expert evidence, a negligence claim will fail.
If by saying “I’m sorry” the healthcare provider is merely acknowledging that something went wrong and that they will try to assist the injured person to the best of their ability, healthcare providers need not be scared about increasing medical negligence claims. Open and honest disclosure between healthcare professionals and their patients could arguably result in a reduction of the number of complaints and subsequent investigations, and assist in improving the quality of medical care provided to future patients.
If I am right, then saying “sorry” shouldn’t be the hardest word.
