There are a number of problems that can crop up while filing a medical negligence compensating claim. The main reason behind this is, of course, the fact that the field is so very technical, and not only from the legal point of view.
The Personnel Involved
Since the claims are completely based on highly technical grounds, the claimant should always engage the services of medical negligence solicitors instead of a general personal injury attorney. Besides, a medical professional also needs to be consulted in order to ensure that your claim does not have any loopholes. Do keep in mind that passing a claim in the court is extremely difficult, especially when it deals with clinical callousness. As a layman, you might not be able to understand the various nuances that are completely exclusive to the medical profession, and filing the claim on your own without consulting a professional in the field is practically legal suicide; the defence counsel will be able to undermine your claim in a matter of minutes.
The Disarming Techniques
There are various methods that the defence counsel will be using to convince the judge and the jury that your medical negligence claim does not really stand in court. Surprisingly enough, in many cases this might actually be true, which happens when you have not been able to research your findings properly.
1. Assumption of Risk
The commonest technique that is used by the defence counsel in such situations is the assumption of risk method. Through this technique, the defendant tries to prove that you had been aware of the risks involved when you agreed to the treatment. This can be rather difficult to disprove during the trial, and even more so if you had already signed an agreement on similar lines. In such cases, it is best to ensure that you procure a copy of the document, known as the fiduciary bond and have the medical negligence solicitors go through it carefully. It will serve as testimony that the injury you received through clinical negligence was not covered in the agreement.
2. Disclosure of Risk
The other method used by the defence counsel to undermine your case is by stating the disclosure of risk clause that forms part of the medical code of ethics. According to the law, the doctor responsible for the surgery or the treatment is not required to discuss every single element in the surgery with the patient. On the other hand, however, there are certain loopholes here too. The doctor is actually required to discuss certain aspects of the illness and treatment with the patient, at least to a certain degree. The discussion and disclosure is completely the doctor’s discretion, but the decision must be made within the strict ethical boundaries.
The excuse of emergency situations is also quoted by the defence counsel to weaken the claim. This tactic consist of the argument that doctors often have to take spur-of-the-moment decision to save a patient, and that in such situations it is not always possible to undertake a thorough risk assessment.
4. Emotional Weakness
The emotional condition of the patient might also be quoted as a reason for not disclosing of the risks involved in the treatment. However, although a pretty valid claim, it does not really stand in court as it is still a gross act of medical negligence if the family or friends of the patient are not informed either of the risks.