I have suffered from medical malpractice - what now?

Monday, 20 de February de 2023

In the world we live in today, science is constantly expanding and scientific discoveries are cropping up at an exponential pace. This is especially true in the field of medicine. Every day we witness the emergence of new treatments, new examination and diagnostic techniques, as well as advances in surgery that were unthinkable just a few years ago. Television, specialised magazines and even the ordinary press echo these novelties, highlighting the excellence of medical professionals and thus fostering the confidence of citizens (and future patients) in them. This happens both in the field of curative and restorative medicine and in cosmetic surgery, where the publicity given to new techniques induces countless people to undergo all kinds of treatments and interventions with the aim of improving their quality of life.

Despite all the advantages for society as a whole, this should not make us forget that the current boom in private medicine has led to the emergence of many care centres whose main objective is to make money, some of them using misleading advertising to attract as many clients as possible.

The result of all this is that, when patients find it necessary to undergo treatments or surgery to recover or improve their health, and even when the surgeries are electively undertaken with the legitimate desire to improve their image and thus obtain a social or emotional benefit, , they do not go to the doctor with the terror and mistrust with which centuries ago they used to go to a physicist or even a few years ago to professionals with good work but limited means; rather, they do so with the confidence that the chosen practitioner will put all the resources that current science allows at their disposal and that they will take on their particular case with the due diligence and professionalism that the Hippocratic oath requires of them.

Unfortunately, this is not always the case, and sometimes the results are not as expected, not because of unimaginable circumstances beyond the professional's control, but because he or she negligently fails to respect or infringes the "lex artis" (the set of rules that should govern his or her professional practice, in accordance with the state of the art – or science, as it were – at  any given time), or fails to act with due diligence. And it is then, when the trust that should govern the doctor-patient relationship is broken, that the patient who has seen their legitimate expectations defrauded often finds themselves disoriented and wonders how they should act, where to go and what the first step should be to claim fair compensation for their undue suffering.

For starters, at the first sign that makes the patient suspect that the treatment received from their doctors is inadequate, it is crucial to place themselves in the hands of a good legal professional and present them with all the information they have available so that, with the help of a medical expert (a doctor who is an expert in the assessment of bodily injury), they can determine whether or not they are dealing with a case that can be compensated. It should be stressed that medicine is not an exact science and often the results are not what one would like. Therefore, for any intervention to be subject to compensation, it is not enough to have achieved a bad result; the damage caused (which can be physical or moral, and frequently both) must be unlawful, as the doctor has infringed the "lex artis" with negligent conduct or by not having used every means available (those that the state of science allows at any given time) to cure the patient or achieve a good result through the intervention. There must therefore be a causal link between the harm suffered by the patient and the conduct of the doctors who treated them. This causal link, which will form the basis of the future claim, is often not easy to determine. Hence the importance of having good legal assistance as soon as possible and collaborating with a competent medical expert to carry out a feasibility study of the possible claim.

It is very important that the patient gathers as much documentation as possible about the treatment or intervention they have undergone: medical history, admission and discharge reports, names of the doctors who have treated them, photographs taken during the treatment or intervention, hospital centres, examinations they have undergone, etc., in order to facilitate the lawyer's task. It is equally important that you undergo the examinations that the medical expert advises you, and the medical guidelines indicated for the course of your pathology or to alleviate the consequences of the negligence suffered as much as possible, until they are cured or become chronic, in order to be able to assess the extent of possible injuries and  after effects, once these have stabilised. This is a crucial moment, as the limitation period for claims begins to run from that point forward.

The patient, advised by his lawyer, must also obtain the informed consent forms that they have signed for the interventions or explorations that have been carried out, since the negligent act is often found, not in the intervention itself (which can lead to undesired yet completely legitimate consequences because it has been carried out scrupulously by a competent professional following the lex artis), but in the fact that the patient has not been previously informed of the type of treatment or intervention that is going to be carried out, its possible adverse effects, and the existing alternatives. And, once informed of all this, the patient must have expressly consented to the performance of that particular intervention, examination or medical act, and not just any other but the one that has actually been carried out.

It is therefore very important that a patient suspecting that he or she has been the victim of medical malpractice refuses to sign any document that the doctor or hospital that has committed the alleged malpractice subsequently presents them with, unless authorised to do so by his or her lawyer. Otherwise, in the absence of early legal assistance, there is a risk that the deficient informed consent will be concealed, making it very difficult for the claim to succeed.

It is with these first actions – the earlier the better, especially as the deadlines for medical negligence claims are short –, that the lawyer will be able to determine whether we are dealing with a case of compensable medical negligence, how much compensation can be claimed (which will depend on the injuries and after effects suffered), and thus initiate the civil claim (if the hospital centre is private), or administrative (if we are dealing with public healthcare) and even, in extreme cases, criminal proceedings against the professionals involved individually. Claims should also be directed against the insurance company for cases of civil liability of the centres or professionals involved.

With all these actions, which may seem useless and unnecessary to the ordinary person, lawyers and experts, with the collaboration of the patients themselves or their relatives, are laying the foundation for what will become a claim for compensation, in order to be in a position to prove, either in or out of court, the existence of a causal link between the patient's injuries or after effects and the health professionals’ actions, thus ensuring that the undue suffering of the patient and their family is justly remedied in the form of financial compensation.

We all know what happens when a house lacks a solid foundation. For a poorly constructed process tends to collapse like a house of cards. And it is the lawyer's job to prevent this.

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