Some common difficulties encountered in medical negligence cases, from the patient's point of view, include:
- medical treatment very often includes a risk of some sort. Very rarely can the total safety of any procedure, even if it is performed with proper care and skill, be guaranteed. Hence, just because the treatment has been unsuccessful, or even harmful, does not mean that there has been negligence.
- what amounts to negligence of a professional person is a matter of opinion and judgement. The court does not base its judgement on what the patient or the practitioner concerned have to say, but on the opinions of suitably qualified experts. Often these experts disagree about what is the cause of the problem, or about what the practitioner should have done in the circumstances.
- it is often difficult to decide what the patient's health would have been like if the problem had not occurred. The court tries to work out whether a patient would still have had the treatment if warned of the risks and whether the presenting condition would have impaired his or her future health and independence in any event.
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