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“He Said, She Said”

posted 3 years ago

This case involves a 45-year-old lady who was partially disabled in her lower limbs due to polio in childhood.

She attended a gynaecological appointment and was brought in a wheelchair. The gynaecologist asked her to get up on an examining couch.

The patient stated that he then left the room with the outpatient nurse for the patient to strip down and climb up onto the couch. The patient states that he walked out without saying anything more to her, except to get up on the couch. The gynaecologist wrote in the notes, retrospectively after 48 hours, that he had asked her if she was able to get up onto the couch herself. He states that she said yes, and that is when he and the nurse left the room to give her some privacy.

Unfortunately, whilst attempting to get up onto the examination couch, the lady fell and broke her left wrist.

Clearly it was accepted there was a duty of care towards her by the gynaecologist when she was known to be disabled. The gynaecologist agreed, stating that is why he asked her if she could get up on the couch on her own. The patient stated he did not ask her at any time but simply left the room, giving her instructions what to do, and no one else was in the room with her.

This particular matter, from the point of view of a medical expert, comes down to two scenarios, and it is for the court to decide which they prefer: either the patient’s version or the gynaecologist’s version. The expert report was therefore written in terms of “If the court accepts A, then…”, and “if the court prefers B, then…”.

The duty of the expert is to indicate there was likely to be a breach of duty, but when the facts are disputed, it is for the court to decide what it accepts as a “fact”, and therefore which version of the expert’s report it prefers.

MDU figures for 2019 show that fewer than one in six actions in medical negligence actually succeed, with the vast majority failing on the grounds of causation. It must be remembered that subsequence is not the same as consequence.

Initial screening is therefore essential to manage client expectations at an early stage. This avoids unnecessary effort and costs for all concerned. Too many cases are taken to Court with no chance of success. This is stressful for both the client and their legal adviser, and indeed for the medical personnel involved.

For fast and effective screening of all potential medical negligence cases, contact Peyton Medico Legal Services now on +44 (0)28 87724177 or email [email protected]


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