|
Last week I took to a call from a lady in a nursing home called ‘Mary’. She was not very old just 63. She had been a registered nurse (RN) for many years and a carer for her sick husband. If you don’t know any registered nurses they are trained as patient advocates for the care and recovery of the sick and maintenance of their health. In their work as advocates for the patient, RNs use the nursing process to assess, plan, implement, and evaluate nursing care of the sick and injured. They are used to talking to doctors and often tell them if they are going wrong. Sometimes the only thing standing between patients being medical negligence statistics is an RN
Mary had been treated by a doctor who had ignored her instructions to examine her for a certain type of cancer she feared she had. She
was right and due to her medical knowledge the medical negligence was
clear was clear to me. He had breached the duty of care he owed her. She had 10
months to live.
However as I took more instructions I learned discomfiting facts. Mary
already had cancer in another part of her body when the doctor had
examined her and that was terminal. She also had cardiomyopathy, was
alone and had been unable to work for years. Basically Mary’s health
was so bad that her lifespan was short whether or not the cancer she
complained of had been detected or not.
The cancer that was missed did not contribute to her terminal condition
but had caused her additional suffering. However as this was her only
compensable cause she had no case.
Why:
- Compensation for negligence requires not only a breach of duty of care but compensable damage.
- Compensation for pain and suffering caused by medical negligence
requires a patient to suffer greater than 5% whole person impaired in
Victoria or greater than 15% of a most extreme case in NSW.
- There are deductions for conditions already existing. Dying of
cancer should get a patient greater than 5% impairment but the effect
of the other illnesses being deducted would reduce the compensation to
zero or very little.
Mary only had months to live and it would have been cruel to suggest
that she spend those last months running a medical negligence claim. I
suggested though that the doctor who stuffed up should be reported. I
provided her with all the material she needed to make a complaint . I
was sure Mary would make things pretty hot for this doctor but was I
was sad that was as far my help could go.
Running a probably hopeless case like that is something that any good lawyer would think long and hard about before filing. It is not just about proving anyone has stuffed up. Any claim should be only made where it is shown there is a net benefit to the client. That benefit must not only financial but emotional.
Terence O’Riain is an accident compensation solicitor
|
