Common reasons why Medical Negligence claims fail

Even in cases where very serious injury has occurred, you still have to prove it happened because of an act or omission of medical negligence.

You must establish that a hospital or consultant owed you a duty to take reasonable care of you as their patient, that they breached that professional duty and that directly led to the injuries suffered by the patient.

It is a lot easier to claim against other motorists or playground owners than it is to claim against your own surgeon or the hospital you were treated in. There are risks involved in routine surgery or even having a dental procedure not to mention an anesthetic. A bad outcome does not in itself mean you have an automatic claim.

In a medical negligence case, you as plaintiff must convince the court (or the insurance company lawyers) that your surgeon or other medical professional carried out the procedure in a careless or substandard manner, well below the standards usually expected of such professionals and that you suffered harm as a result.

There are, not surprisingly, a lot of hurdles to overcome before you can successfully build a claim against a consultant and this explains why several medical negligence claims ultimately fail.

Chief among these hurdles are:

1. Inadequate documentation as to the injury or condition allegedly suffered. The X-rays or scans do not show the sort of setback or injury the plaintiff alleges. Perhaps the patient had a routine post-operative complication and was not treated negligently? Your solicitor will make sure all the scans or X-rays are examined by your team.

2. Failure to extract the relevant medical notes or history from the doctor or hospital. This is important to show any prior history and to establish direct links between the procedure actually carried out and the subsequent condition of the plaintiff. The notes might fail to show any of the stages of the procedure were actually carried out negligently. Hospitals are slow to share their medical notes, and a court application may be necessary. You should obtain comprehensive notes, through your solicitor, otherwise a claim could fail.

3. Failure of the plaintiff to make a complaint to the hospital or consultant in a timely manner. Obviously, if the plaintiff leaves making a claim for some considerable time, he could fall foul of the rules whereby, generally speaking, you must issue a claim within two years of the injury suffered. However, if you make a claim the day before the two-year period runs out, the court may be critical of you or be more inclined to rule against your claim. Be timely about gathering your documents and seeing your solicitor.

4. The court will listen to you but rely instead on the evidence of a respected independent medical consultant or expert, whose role is to weigh up all the medical evidence and advise the court whether, in his professional judgment, the plaintiff has indeed good grounds for a claim in negligence against the hospital or consultant.

5. Several cases fail because the expert chosen is not experienced enough or whose testimony lacks cohesion or credibility. “Medical Experts- for -hire” have been criticized recently by judges in Ireland for giving evidence they found was neither cogent nor relevant. Your solicitor will choose a medical expert who is used to giving such evidence and whose opinion will weigh heavily with a judge. In essence, your own medical expert’s testimony will largely determine whether your claim succeeds or fails.