Medical Malpractice
6. The Doctor Was Negligent
Authors: Staff Legal Eagle
Firm / Chambers:
Last updated: 12 Aug 2015
- The law recognises and distinguishes between situations where a doctor makes a mistake or error of judgement and when a doctor is negligent. These are not the same thing.
- Mistakes and errors of judgement will generally not give rise to a claim. Even the most diligent and thorough medical professionals make mistakes and errors of judgment.
- The doctor’s conduct needs to have fallen below the standard of care expected by the medical community.
- In most states the standard of care for medical practitioners is based on peer professional opinion.
- This means that a doctor will generally not be found negligent if his conduct is shown to be of a kind that was widely accepted as competent professional practice by a significant number of respected practitioners at the time.
- In some situations this will still not be enough. If a medical practitioner provides evidence of their conduct being widely accepted within the profession a court may still consider the medical practitioner negligent if the court considers that the widely accepted practice is irrational. Given that judges are not medical professionals it is rare for a judge to make a finding of this kind in the face of expert evidence.
- Expert opinion plays an important role in this element for both the plaintiff and the defendant.
- The plaintiff will need the evidence of a medical expert in order to show that the doctor’s conduct fell below the acceptable standard of care.
- This will require the victim to obtain an opinion from another medical practitioner. This will usually be someone who is at the same or higher level of seniority and specialisation as the practitioner being sued. For example if a surgeon is being accused of a breach of their duty a witness statement from a midwife would not be appropriate or relevant.
- In order to deny liability a defendant medical practitioner will also rely on the expert opinion of another medical practitioner in the field as evidence that their conduct did fall within the acceptable standard of care for the profession.
View more Information on Compensation & Insurance