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Not all medical errors are “negligent”. Just because a person suffers a bad outcome from medical treatment, does not mean that they have an automatic right to sue for compensation. A medical error is only considered “negligent” if the healthcare practitioner has failed to take “reasonable care”. The law does not require a doctor to act “perfectly”, but rather, the law requires that a doctor take “reasonable care” in treating and advising a patient. This is not a high or impossible standard to achieve.

“It is expected of a professional person that he should show a fair, reasonable and competent degree of skill; it is not required that he should use the highest degree of skill . . .”
Bolam v Friern Hospital Management Committee [1957]

If the AMA had it’s own way, doctors would be treated as a special class of professionals exempt from liability. But why should negligent doctors be treated any different from other professionals? Isn’t it reasonable to expect that all professionals to whom we pay money to and who hold out as having expertise, must pay compensation if they cause damage through their incompetence or recklessness?

If there is a failure to take reasonable care, the patient has to get over the “causation” and “damages” hurdles before they can sue. This is not as easy as it seems. Patients have the onus of proof in court placed on them to establish that a doctor has not only breached their duty of care by failing to provide reasonable care resulting in injuries, but they must also prove that the most likely cause (“causation”) of their injuries was the doctors’ failure to take reasonable care. This is very difficult to establish, given that most patients already have underlying illness and medical conditions, and it can sometimes be impossible to prove that a patient would have had a better outcome or a chance of a better outcome if a doctor had acted reasonably in the first place. Insurers will often purport to establish that a patient’s injuries and disabilities are pre-existing conditions rather than caused by medical negligence, so as to avoid having to compensate the plaintiff.

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