Medical Negligence also known as Clinical Negligence is similar to a personal injury claim in that the aim of the Claimant is to establish liability and maximise damages against either an individual doctor/dentist or healthcare trust/hospital. However it is a sad fact that in these cases the issue of liability is normally far more complicated than in a standard personal injury claim.
The three basic questions that have to be answered are the same for a medical negligence claim as they are in a personal injury claim (if it is a common law negligence claim). These are:
(a) that the medical professional/trust owed him a duty of care;
(b) that the medical professional/trust breached that duty
(c) that he suffered loss as a result of that breach
Duty of care
This is fairly simple and it is generally accepted that a medical professional will have a duty of care towards their patients in the normal course of events and that a medical trust can also be seen to have a duty towards the patients.
Breach of the duty of care
Within a normal personal injury claim the defendant will breach the duty of care if he does not act in the way a reasonable person would act. However this is modified within a medical negligence claim. The Claimant now has to show that the medical professional/trust followed a course of action that is not supported by any reasonable body of medical opinion. This is known as the Bolam test after the case of Bolam v Friern Hospital Management Committee. In this case they stated:
The test as to whether there has been negligence or not is not the test of the man on top of the Clapham Omnibus because he has a special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art… A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art… a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion which takes the contrary view.
So if the defendant can show that they acted in accordance with a reasonable body of opinion they may well have a defence to their actions. There is also the general rule followed by practitioners that if 10% of the doctors in the country would act in that way then it won’t be negligent however this is not supported by case law. There is case law however to confirm that there is scope in the medical profession for genuine differences of opinion and just because your doctor didn’t agree with another doctor doesn’t make his actions negligent.
Claimants should bear in mind that each case will turn on its own facts. The burden of proof in such cases is also on the shoulders of the Claimant to show that there has been a breach of duty. The evidence supplied by the Claimant must be clear and just because an operation or procedure has gone wrong does not mean that the medical professional is negligent.
The Bolam test is only relevant in situations involving clinical judgment. If the errors are clear breaches of a duty of care then they won’t need to consider the test.
The Claimant needs to show that as a result of the breach of duty by the medical professional he failed to recover from his condition or reduced the chances of him recovering from. In the alternative they need to show that the original condition/injury has become worse due to the treatment that they have received.
What must be remembered is that when considering causation they must consider the level of knowledge in the medical profession at the time of the incident. If an expert is instructed years after the event when treatment methods have moved on it will be crucial to remind the expert they must consider what the medical knowledge was at the time of the incident.
To succeed in a medical negligence claim the Claimant must show that the breach of duty caused his injury. If a failure to treat a patient has made no difference because he would have died in any event, his death will not have been caused by negligence.
The but for test is also modified in a medical negligence claim so that a Claimant cannot make a claim for loss of prospect of recovery if the chance of recovery is less than probable. So if there is a greater than 50% chance he would not have recovered anyway then there is likely that there won’t be a finding of causation.
If you have been let down by a medical professional and you feel their behaviour has not been reasonable you may have a claim for medical negligence. Please do not hesitate to contact us and one of our team will be able to discuss your case with you. We will advise you on whether you might have a case and whether there is a feasibility that we can take forward your case on a no win no fee basis.