Medical malpractice?

DEAR MRS MACAULAY,

I would like to know how long is too long to file a suit against the hospital that gave me the wrong medicine while pregnant with my daughter. This incident occurred three years ago, but I am left with scars on my body from the medication given. I had made it known I was allergic to the medicine prior to admission, but was still prescribed the medicine under another name — same ingredients, different drug name.

This medicine left me with large dark spots all over my back and tummy. My daughter was even diagnosed with a lung infection shortly after birth. I don’t know if this coincides with the medication given, but I am still making mention.

Do I still have a case?

I am very sorry to learn that you suffered adverse reactions to a clear medical wrongful act. It was the duty of your medical team to have checked the components of the contents of the medication you were given throughout your medical procedure. This sort of “mistake” falls under the category of a tortious act. It is otherwise commonly referred to as “medical malpractice”. When such a thing happens the victim of the negligent act has a cause of action against the doctor(s) and/or medical professional and their employer (the hospital, be it a limited liability company or statutory institution, group practice, clinic, medical laboratory or sole practitioner), for damages for negligence in the treatment the patient received and for the injury which resulted as a result of it.

Your claim must be against the people who actually administered the medication to you and the hospital, in its correct legal identity, as their employer. The period within which you must file your claim is six years from the date the negligent act occurred to the last day of the sixth year. This means that if you are filing your claim on the last day, it must be done within the court registry’s working hours. It is not a good idea to wait for the very last day before your claim is filed. You say that the incident happened three years ago. You, therefore, have only three years left. You must act quickly and retain the services of an attorney to act for you and your baby.

You and your lawyer have to collect all the evidence you will need to prove your claim on a balance of probabilities against the defendants in your claim. I have alluded to them above, but after you give and tell your lawyer all the facts about what happened to you and your baby daughter, then also inform himher, who the people were who you told of your allergy to the medication, who administered it to you, and in both instances, when. Say when the scars/dark spots appeared (take photographs of them, print them, and give copies to your lawyer) and describe how they felt, if they caused pain or were itchy or whatever. If there was no physical discomfort, then describe for your lawyer how they made you feel about yourself and whether it affected how your intimate partner reacted to them and how this affected your state of mind and your relationship with him. Relate to your lawyer if you consulted a dermatologist and what was the result, if you had some treatment and its success or failure and the cost of it all for you.

Your lawyer will consider all that you have told him/her and peruse all the documents and any reports. You will then be informed that you would need medical expert evidence to support your factual evidence, both about the make-up of the medication and its direct and side effects on patients generally and also on those like you, who are allergic to it. There also has to be medical expert evidence about the scars and the effect and the length of time they remain potent. Then expert medical evidence would also be necessary for your baby’s lung infection shortly after her birth. As you can see, there is a lot to be done apart from the medical collaborative evidence which must be obtained, if your claim is to be successful.

You certainly still have a cause of action and for which a claim can be filed on your behalf by your legal representative, but for you to succeed, you will need to obtain expert medical witnesses to support your claim. Your lawyer would advise you in greater detail after you relate the full factual details to him or her. Your own claim is clearer to identify, but your daughter’s cannot be identified with certainty unless you have the clear medical evidence to tie her lung infection to the medication you were given.

The necessary evidence must be available before you start your case, especially before you serve the defendants named in it, so that you do not expose yourself to liability for their costs if you cannot proceed to completion and success.

So please do not let too much more time pass before you go and retain your lawyer. Make sure that the lawyer is experienced with medical negligence cases. Ask and do not be afraid to double check the information you are given about experience and you can go on the Supreme Court of Jamaica’s website and search for medical negligence cases and judgements. The names of lawyers who appeared in them are generally given at the beginning of the judgements and you can then contact those you find after you have read the judgements.

Please act as quickly as you can. Cases like yours are difficult and need sufficient time to be ready for trial, especially for obtaining witnesses for the medical expert evidence as would be necessary for success.

I hope I have answered your questions for you to fully understand the situation.

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women’s and children’s rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.

DISCLAIMER:

The contents of this article are for informational purposes only and must not be relied upon as an alternative to legal advice from your own attorney.