Thursday, 15 November 2012

Seeking Justice

lupus.cheezburger.com
Someone suggested to me that one of my Medical Horror Stories last month might be the basis for a medical negligence claim. It's not. It was just some scary stuff that happened.

If you've got a condition like lupus (even though it wasn't diagnosed at that time) you're going to encounter some scary stuff from time to time. That's not anyone's fault, it's just how it is.

There are cases where it is legitimate, possibly even important to make a medical negligence claim. In fact, I know a couple of people who have made them. (I won't tell you their stories, because that's their personal stuff, not mine.) But in both cases, I believe they did the right thing in going for the claim.

So when is it time to call in the lawyers?  Well, like I said, not just because some bad stuff happened, and not just because you got scared. Bad stuff happens all the time, and people get scared all the time. The time to consider going to court is when: the bad stuff happened because of something someone did; and some actual harm resulted from the bad stuff.

As patients, we put a lot of trust in our doctors. Usually, that trust is very well-founded. Most doctors work very hard to keep their skills up-to-date, and to take into consideration all of the risk factors in any treatment they recommend. Nowadays, doctors will often actually discuss the risks of any treatment with the patient, so the patient can make an informed decision about their own body.

But, in all professions, sometimes someone does something really inappropriate, really stupid, or just really incompetent and people suffer as a result.

So, for example, the junior doctor who attempts something beyond his/her level of competence instead of calling in someone more senior, is doing the wrong thing.  The doctor who prescribes medication that is contra-indicated for a particular patient, is doing the wrong thing. The pharmaceutical company which releases a drug and doesn't warn of serious side-effects is doing the wrong thing. The pharmacist who dispenses the wrong drug is doing the wrong thing. Any of these cases is cause for a complaint to the hospital or relevant authority.

When it goes further than doing the wrong thing, when doing the wrong thing leads to negative consequences for the patient, that, in my opinion, is when it's appropriate for legal action. Compensation claims are about trying to get justice for a wrong. So the person who, because of someone else's action, is unable to earn an income should be compensated for the income they would otherwise have been able to earn.  The person who, because of someone else's action, needs further medical treatment to undo damage, should be compensated for the cost of that treatment and the time it takes out of his/her normal life to recover. Anyone who has been harmed by another's actions deserves some kind of justice.

Compensation, in the legal system, usually means a financial payment. Money doesn't replace what is lost when you are physically or psychologically or socially harmed, but it can go some way towards remedying the situation in some cases. In our society, money is the way most serious exchanges are made, so that is how compensation is paid.

At some level, I think many of us would like to see the person responsible have to personally fix the problem - if someone's direct action means you can't do your housework, they should have to come and do your cleaning for you, personally. In the real world, it doesn't happen like that, but it really ought to. In the real world, medical compensation payments are made by insurance companies, who charge doctors, who charge patients. (So we're really paying for it ourselves.)

That, in itself, has some problems. When I needed a hysterectomy, it was hard to find a surgeon to do the procedure - because the insurance cost was so high that many of the gynaecologists in Brisbane, who were competent to do the surgery, simply wouldn't do it.

On the other hand, when something really bad happens, I don't think any patients will begrudge the extra cost and inconvenience for the sake of helping to make things right, or as close to right as they can be, for someone who's been a victim of medical malpractice or negligence.

This post was sponsored by Alexander Harris Injury and Accident Solicitors.

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