SUNI­TA DAIRAM

Stu­dent, Hugh Wood­ing Law School

Med­ical neg­li­gence oc­curs where an act or omis­sion by a health care provider in pro­vid­ing treat­ment falls be­low the ac­cept­ed stan­dard of prac­tice in the med­ical com­mu­ni­ty, caus­ing in­jury or death to the pa­tient.There­fore, if you have been treat­ed for a med­ical con­di­tion and be­cause of that treat­ment you have suf­fered ad­verse ef­fects you may have a med­ical neg­li­gence claim. To bring a claim for med­ical neg­li­gence the pa­tient must prove four el­e­ments. These el­e­ments are:

Du­ty of care

The med­ical pro­fes­sion­al is held to a high­er du­ty of care than that of the or­di­nary per­son. The ear­ly test for med­ical neg­li­gence, known as the 'Bo­lam' test, stat­ed that a doc­tor "is not guilty of neg­li­gence if he/she has act­ed in ac­cor­dance with the prac­tice ac­cept­ed as prop­er by a re­spon­si­ble body of med­ical opin­ion".

A med­ical pro­fes­sion­al per­form­ing his/her du­ties in T&T is con­sid­ered to be com­pe­tent once act­ing in ac­cor­dance with the rules and prac­tices fol­lowed by the Med­ical Board Act Chap. 29:04 and oth­er gen­er­al­ly ac­cept­ed prac­tices.

Breach of du­ty of care

A med­ical pro­fes­sion­al must have breached a du­ty of care that he/she owed to the pa­tient.Doc­tors can be found guilty of med­ical neg­li­gence, which is in essence a breach of a du­ty of care, for failed or de­layed di­ag­no­sis, fail­ure to warn of risks in treat­ment, among oth­er things.

Cau­sa­tion

To prove med­ical neg­li­gence one must show ac­tu­al or prox­i­mate cause. Prox­i­mate cause is the pri­ma­ry cause of an in­jury. To help de­ter­mine this, the courts have de­vel­oped the "but for" rule, which means that "but for" the med­ical pro­fes­sion­al's neg­li­gent act or omis­sion, the in­jury would not have oc­curred.

For ex­am­ple, "but for" the doc­tor leav­ing a sponge in the pa­tient, the pa­tient would not have de­vel­oped an in­fec­tion. This is known as le­gal cau­sa­tion. How­ev­er, there may be oth­er in­de­pen­dent or in­ter­ven­ing fac­tors at play that can im­pact on the ul­ti­mate in­jury. To es­tab­lish li­a­bil­i­ty there­fore, it must be shown that the neg­li­gent act was the ac­tu­al or pri­ma­ry cause of the ul­ti­mate in­jury.

In­jury and loss

Ac­tu­al in­jury or loss must be proved by the pa­tient to en­ti­tle him/her to an award of dam­ages or com­pen­sa­tion.There are two types of loss a per­son may seek to re­cov­er. Eco­nom­ic loss in­cludes dam­ages for the ac­tu­al phys­i­cal in­jury, med­ical ex­pens­es, com­pen­sa­tion for lost work, etc. Non-eco­nom­ic loss­es are those that do not have a spe­cif­ic mon­e­tary loss as­so­ci­at­ed with them, such as pain and suf­fer­ing.

Lim­i­ta­tion pe­ri­od

As with oth­er neg­li­gence claims, a med­ical neg­li­gence claim in T&T must be brought with­in four years of the cause of ac­tion, as stat­ed in the Lim­i­ta­tion of Cer­tain Ac­tions Act Chap. 7:09. It is on­ly when the pa­tient is made aware of the neg­li­gence that the lim­i­ta­tion pe­ri­od be­gins to run, as a doc­tor may have op­er­at­ed on a pa­tient and may have been neg­li­gent but the pa­tient does not be­come aware un­til lat­er on.

This col­umn is not le­gal ad­vice. If you have a le­gal prob­lem, you should con­sult a le­gal ad­vis­er. Co-or­di­na­tor: Roshan Ram­char­i­tar