Some Helpful Tips
LAW REPORT
Some examples of breach could be an incorrect diagnosis, overlooking a patient’ s signs or symptoms, incorrectly prescribing medication, failing to order necessary tests, misinterpreting results, failing to gain informed consent, failing to adequately warn patients of risks, failing to follow up, not taking a patient history and performing a treatment for which you have no qualifications.
So, this is all probably sounding overwhelming, but it needn’ t be. There is a simple way to avoid these complaints, and that is to follow Peer Professional Opinion in practising your therapies. In other words, if there is a standard approach and treatment of a condition agreed to by your profession you should always stick to that. That becomes your scope of practice and always stay within it.
Causation
The third element that a plaintiff must prove in a negligence claim is causation. This means that a plaintiff must show that the damage or injury suffered came about as a result of the breach of duty of care. There is an old test called the‘ but for’ test which states that a plaintiff must show that‘ but for the defendant’ s negligence they would have suffered no loss’. Simply put, if the health care professional hadn’ t acted in the way they did, the patient / client would not have been harmed in some way.
ALL A PLAINTIFF MUST PROVE IS THAT IT IS LIKELY THE DEFENDANT DID THE WRONG THING IN SOME WAY. THIS IS WHY IT IS VERY IMPORTANT, AS A HEALTH CARE PROFESSIONAL, TO ALWAYS ACT IN THE CORRECT WAY.
Some Helpful Tips
1. Always take a client history and regularly review it and update it.
2. Always listen to what your clients are saying about their symptoms as well as observing their signs.
3. Always follow industry guidelines in diagnosing, treating, and caring for clients.
4. Always get consent before any treatment.
5. Always warn clients of possible risks and side effects from treatments or therapies.
6. Always follow up with clients. 7. Always read test results carefully.
8. Always refer the client to another therapist if their issues are beyond your scope of practice.
9. Never perform a treatment that you are not qualified in.‘ Qualified’ means that you have a certificate that is recognised by your industry.
10. Never perform a treatment that is outside your scope of practice. Merely having read about something isn’ t enough.
11. Never tell a client to ignore a medical or other professional or stop them taking medication. Encourage open communication between the client and all their health professionals.
12. Stay up to date with new practices and industry guidelines. This is your Standard of Practice, and it is on you to know about it.
This is usually not too difficult for the plaintiff to prove. Sometimes where a therapist has obviously done the wrong thing there will be evidence to show this. At other times, it can be more difficult. All a plaintiff must prove is that it is likely the defendant did the wrong thing in some way.
This is why it is very important, as a health care professional, to always act in the correct way. You can show evidence, if necessary, that you always take a case history or that you always warn clients of risks etc. That would mean that it is also likely you would have done that in this case as well.( Go back and read my tips again and make sure you follow them!)
Damages
If a plaintiff successfully proves duty of care, breach, and causation, they will be eligible to receive compensation for their injury or the harm that has been caused. This final element of a negligence claim is called damages.
Damages are awarded for both economic and non-economic loss and include things like lost wages, medical expenses, ongoing treatment expenses and pain and suffering.
This is just a brief review of the law of negligence and every case is decided on the facts of its own situation. Not every injury or harm is caused by negligence; sometimes things just happen through no one’ s fault. Always protect yourself by acting in the way your peers recognise as standard practice and make sure your have adequate insurance. Stay up to date with industry changes and always act in a professional way.
JATMS | Winter 2025 | 97